202.01    Clear Drawing of the Mark

Under 37 C.F.R. §2.21(a)(3), a §1 or §44 applicant must submit "a clear drawing of the mark" to receive a filing date, except in applications for registration of sound, scent, and other non-visual marks. See TMEP §807.09 regarding "drawings" in applications for registration of sound, scent, or non-visual marks.

A "drawing" is a depiction of the mark for which registration is sought.  37 C.F.R. §2.52.  A drawing that includes multiple elements that do not comprise an identifiable mark, or that consists of wording describing the mark, does not constitute a clear drawing of the mark.

An application that includes two or more drawings displaying materially different marks does not meet the requirement for a "clear drawing of the mark."  Therefore, an application is denied a filing date if it includes two or more drawings displaying materially different marks.   See Humanoids Grp. v. Rogan, 375 F.3d 301, 71 USPQ2d 1745 (4th Cir. 2004).

The drawing is provided in a TEAS application form using the "Mark Information" field. If an applicant (1) enters a standard character mark in the "Mark Information" field of an application filed through TEAS, or (2) attaches a .jpg file containing a mark to the "Mark Information" field of a TEAS application, and a different mark appears elsewhere in the application, the mark shown in the "Mark Information" field will control for purposes of determining the nature and elements of the mark. See In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d 1063, 1064 (Dir. USPTO 2001). The USPTO will grant a filing date to the application if it otherwise meets the minimum filing requirements, and disregard any other mark that appears elsewhere in the application. See Id. at 1064. The applicant will not be permitted to amend the mark if the amendment is a material alteration of the markin the "Mark Information" field in a TEAS application. See 37 C.F.R. §2.72  and TMEP §§807.14-807.14(f) regarding material alteration of a mark.

A specimen showing use of the applied-for mark does not satisfy the requirement for a drawing.  If the only depiction of the mark is on a specimen (e.g., an advertisement, a photograph of the goods, or the overall packaging), then there is no drawing of the mark, and the application will be denied a filing date.

Section 66(a) Applications. In a §66(a) application, the drawing must meet the requirements of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol) and the Regulations Under the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, which are available on the IB’s website at https://www.wipo.int/madrid/en/. The IB will determine whether the drawing meets these requirements before sending the application to the USPTO. See TMEP §1904.02(k) for further information.

Permitted Paper Applications. If an applicant submits a separate drawing page showing a mark and a different mark appears elsewhere in the paper application, the drawing page will control for purposes of determining the nature and elements of the mark. In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d at 1064. See TMEP §301.02 regarding the limited exceptions for paper submissions.

The USPTO will grant a filing date to the application if it otherwise meets the minimum filing requirements, and disregard any other mark that appears elsewhere in the application. In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d at 1064. The applicant will not be permitted to amend the mark if the amendment is a material alteration of the mark on the drawing page. See 37 C.F.R §2.72  and TMEP §§807.14-807.14(f) regarding material alteration of a mark.

See TMEP §§807-807.18 for additional information about the examination of drawings.

See also TMEP §204.03 regarding the examining attorney’s handling of applications that are erroneously granted a filing date.