Coding of Design Marks in Registrations, 81587-81589 [2010-32564]

Download as PDF Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Notices Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the MagnusonStevens Fishery Conservation and Management Act, provided the public has been notified of the Council’s intent to take final action to address the emergency. Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522–8220 (voice) or (808) 522– 8226 (fax), at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 et seq. Dated: December 22, 2010. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2010–32595 Filed 12–27–10; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE Patent and Trademark Office [Docket No. PTO–T–2010–0090] Coding of Design Marks in Registrations United States Patent and Trademark Office, Commerce. ACTION: Notice and request for comments. AGENCY: The United States Patent and Trademark Office (‘‘USPTO’’) proposes to discontinue its secondary design coding, the practice of coding newly registered trademarks in its searchable electronic database with design mark codes based on the old paper search designations. DATES: Comments must be received by January 27, 2011 to ensure consideration. Addresses for Comments: The USPTO prefers that comments be submitted via electronic mail message to TMFRNotices@uspto.gov. Written comments may also be submitted by mail to: Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313– 1451, attention Cynthia C. Lynch; by hand-delivery to the Trademark Assistance Center, Concourse Level, emcdonald on DSK2BSOYB1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 22:37 Dec 27, 2010 Jkt 223001 James Madison Building-East Wing, 600 Dulany Street, Alexandria, Virginia, attention Cynthia C. Lynch; or by electronic mail message via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site (http:// www.regulations.gov) for additional instructions on providing comments via the Federal eRulemaking Portal. The comments will be available for public inspection on the USPTO’s Web site at http://www.uspto.gov and will also be available at the Trademark Legal Policy Office, Madison East, Fourth Floor, 600 Dulany Street, Alexandria, Virginia. FOR FURTHER INFORMATION CONTACT: Cynthia C. Lynch, Office of the Deputy Commissioner for Trademark Examination Policy, by telephone at (571) 272–8742. SUPPLEMENTARY INFORMATION: Background Pursuant to 35 U.S.C. 41(i)(1)–(2), the USPTO maintains a publicly available searchable collection of all United States trademark registrations. Initially, the collection was provided in paper form only. Currently, the USPTO provides the collection in electronic form. When the trademark collection was maintained in paper form, marks were searched in tall cabinets located at the USPTO’s Public Search Facility. In addition to the public, trademark examiners searched using the paper collection to determine whether registration should be refused pursuant to 15 U.S.C. 1052(d). Design marks were separated into design categories, groups, types, or divisions, subdivided into specific representations according to the U.S. class of goods or services covered in the registrations, and then arranged in ascending order by registration number. Marks with multiple design elements generally had to be searched separately, which was both challenging and time-consuming. In an effort to improve the efficiency of searching for the public and USPTO examiners, the USPTO began developing a searchable electronic database of marks in 1982. By 1988, the USPTO’s trademark examining attorneys used the automated system exclusively to conduct their searches. The USPTO also began to provide public access to the trademark database of active registered and pending marks through the Public Search Facility and later on the USPTO Web site. When developing the new automated search system, the USPTO also developed a new numerical design code system, modeled after the International Classification of the Figurative Elements PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 81587 of Marks (‘‘USPTO Design Classification’’), which was intended for an electronic environment and would enable searching multiple design elements in one search. In this system, each design element is generally assigned a six-digit numerical code: the first two digits indicate the category type (e.g., category 01 is celestial bodies, natural phenomena, and geographical maps), the next two digits indicate the division (e.g., 07 is globes), and the last two digits indicate the section (e.g., section 05 is globes held by a human). This numerical design code system is more robust than the paper search design code system, which relies exclusively on a word or term to identify a design element and cannot achieve the level of detail of the numerical system. In conjunction with the new design code system, the USPTO also provided (and continues to provide) a Design Search Code Manual (‘‘Manual’’) that includes an index, provides guidance on and examples, cross-references related material, and gives tips on searching using this system. The Manual is available to the public on the USPTO Web site. In 2002, the USPTO submitted a report to Congress detailing a plan for the removal of a portion of its paper search collection. However, in response to public concern about relying exclusively on the electronic system, the USPTO decided to temporarily retain the paper collection of registrations with design coding, while improving the accuracy of its electronic database, and modified its plan accordingly. In 2007, the USPTO submitted a new report to Congress with updated information about the improved accuracy of its electronic database and USPTO Design Classification coding, microfilmed all paper trademark registrations that include design elements, and removed the entire paper search collection from its search facility. At the same time, the USPTO replicated in the automated search system the paper design code system, exhibiting these word-based codes in a new data field for the electronic search system called the Trademark Search Facility Classification Code Index (‘‘TC Index’’). The TC Index allowed those who wished to search using the old paper designations to continue to do so in the electronic database. Proposed Changes After more than three years of coding under both the TC Index and USPTO Design Classification systems, the USPTO proposes to discontinue applying the TC Index code system to E:\FR\FM\28DEN1.SGM 28DEN1 emcdonald on DSK2BSOYB1PROD with NOTICES 81588 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Notices registrations because it is no longer costeffective and is never used by USPTO examining attorneys and rarely used by the public. Currently, the assignment of TC Index codes to active U.S. trademark registrations in the searchable electronic database costs approximately $531,000 per fiscal year for staffing and systems maintenance and support costs. Terminating the dual design-coding system will result in cost savings and will free the staff to perform more valuable services for the public. Searches based on the TC Index coding appear to be quite minimal. For example, Trademark Electronic Search System (‘‘TESS’’) searches conducted from January 1, 2010 though July 31, 2010, show that of the on-average 2,531,680 searches conducted per month, on average only 229 employed the TC Index coding to search. By contrast, 2,805 searches, on average, relied on the USPTO Design Classification. Thus, the vast majority of design searches are currently performed using the USPTO Design Classification system. USPTO examining attorneys also rely exclusively on the USPTO Design Classification system to search. Compared with the USPTO Design Classification coding system, the TC Index coding system provides little or no benefit to users that would justify the cost to maintain it. The very general categories of designs result in cumbersome and time-consuming searches, generating sometimes enormous results lists for users to review. For example, the TC Index coding system groups stars under the design code SHAPES–ASTRO, which encompasses all astronomical shapes consisting of celestial bodies (such as the moon, sun, stars, planets, etc.), globes, and geographical maps. Searching this TC design code generates approximately 16,001 registrations and there is no mechanism for restricting the search to five-pointed stars, or sixpointed stars, or groups of stars. Users must expend considerable time reviewing all registered marks containing celestial bodies, globes, and geographical marks to locate the specific types of star marks that are of interest to them. Searches using the TC Index codes can also provide imperfect results. For example, the TC Index does not have a specific code for Braille, and images are coded as SHAPES–CIRCLES, which retrieves over 45,000 search results. Searching large numbers of circles is an inefficient way to locate Braille marks. Searches generally are also less accurate than those performed using the USPTO Design Classification coding system. VerDate Mar<15>2010 22:37 Dec 27, 2010 Jkt 223001 By contrast, advances in coding under the USPTO Design Classification and its greater specificity provide the public with more precise and accurate search results than are currently available through the use of the TC Index codes. Additionally, the USPTO Design Classification is applied to pending applications for marks with designs as well as to registered marks with designs, thereby making it more useful in assessing potential likelihood of confusion. Examining attorneys rely solely on the USPTO Design Classification for examining and approving applications for marks with design codes for Federal registration. The USPTO invests heavily in its electronic search systems, and commits considerable resources to ensuring the quality of design coding under the USPTO Design Classification system. When an application with design elements is filed, specially trained Federal employees in the PreExamination section of the USPTO review the mark drawing and assign USPTO Design Classification codes. In 2008, the USPTO amended the Rules of Practice in trademark cases to require a description of any mark not in standard character, in order to obtain the applicant’s characterization of design elements to assist the USPTO in making accurate and comprehensive designcoding determinations. For example, employees use the applicant’s mark description to clarify ambiguous design elements, thereby promoting correct design coding. The USPTO continues to provide comprehensive training to PreExamination employees on coding marks with design elements to ensure accuracy in coding. In addition, the USPTO performs quality review of the work of the employees, which improves confidence in the consistency and accuracy of the design coding. The design coding in an application is reviewed again when a mark with design elements is assigned to a welltrained examining attorney to determine whether Federal law permits registration. The examining attorney reviews the mark, the design codes, and the mark description and may determine whether codes should be added or deleted. In 2008, the USPTO also provided rigorous training to its Legal Instruments Examiners, who assist in reviewing and updating application and registration data, on coding under the USPTO Design Classification. This review of design coding by different groups at the USPTO has greatly increased accuracy and decreased subjectivity in coding. The USPTO Design Classification codes are also subject to external review PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 by the public, which further ensures correct design coding. Each applicant for a mark that includes a design element receives a notice from the USPTO identifying the USPTO Design Classification codes assigned to their mark and providing detailed instructions on how to suggest additions or revisions to the assigned codes. Since 2005, the USPTO has sent approximately 367,000 such notices. These notices provide applicants with an opportunity to enhance the quality of the design coding of marks with design elements. After a mark registers, filing receipts for post-registration filings submitted via the Trademark Electronic Application System notify registrants of the ability to request additions or corrections to the USPTO Design Classification codes assigned to their registered marks. Furthermore, upon acceptance of a registrant’s Declaration of Use and/or Excusable Nonuse of Mark in Commerce under 15 U.S.C. 1058, the registration file is referred to USPTO employees for yet another review of the design codes assigned to the mark. Upon completion of the review, the USPTO notifies the registrant of the USPTO Design Classification codes assigned to their registered mark and provides information on revising design codes. The USPTO Web site also provides information on submitting corrections or additions to design codes in trademark applications and registrations. Even members of the public may submit a design coding suggestion. These measures all help to ensure a high level of coding accuracy. The USPTO also updated the Manual in 2006 to allow for greater precision in identifying and coding designs. Many of the larger design-code sections were modified to create smaller sections. For example, three new design code entries for stars were added, which allow users to narrow searches to specific types of stars. These changes result in faster and more efficient electronic searches with little irrelevant data returned. In view of the widespread use of the USPTO Design Classification system, its clear advantages and the limited use of the TC Index system, the impact of discontinuing coding based on the TC index appears minimal. The public and the USPTO will realize efficiencies. The USPTO will be able to devote more of its limited resources to the maintenance and improvement of the USPTO Design Classification system, which is more widely used by the public. All existing registrations coded with paper search designations will remain available in TESS and on microfilm. Design-coding E:\FR\FM\28DEN1.SGM 28DEN1 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Notices using the USPTO Design Classification system has continually improved through internal and external review of the coding and through internal training and quality-review procedures. The USPTO Design Classification system provides more accurate results, is available to all members of the public through the Internet, and is exclusively used by the examining attorneys at the USPTO. Accordingly, the USPTO hereby gives notice of its intent to discontinue coding design marks with paper search designations. Any interested member of the public is invited to provide comments on this plan within thirty (30) days. The USPTO is providing this opportunity for public comment because the USPTO desires the benefit of public comment on the proposal; however, notice and an opportunity for public comment are not required under 5 U.S.C. 553(b) or any other law. See Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336–37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rule making for ‘‘ ‘interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.’ ’’ (quoting 5 U.S.C. 553(b)(A)). Persons submitting written comments should note that the USPTO may not provide a ‘‘comment and response’’ analysis of such comments as notice and an opportunity for public comment are not required. Three Lafayette Center, 1155 21st St., NW., Washington, DC. Lobby Level Hearing Room (Room 1000). PLACE: CONTACT PERSON FOR MORE INFORMATION: STATUS: Sauntia S. Warfield, Assistant Secretary of the Commission. Open. MATTERS TO BE CONSIDERED: The Commission has scheduled these meetings to consider the issuance of various proposed rules. Agendas for each of the scheduled meetings will be made available to the public and posted on the Commission’s Web site at http://www.cftc.gov at least seven (7) days prior to the meeting. In the event that the times or dates of the meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission’s Web site. CONTACT PERSON FOR MORE INFORMATION: David A. Stawick, Secretary of the Commission, 202–418–5071. David A. Stawick, Secretary of the Commission. [FR Doc. 2010–32780 Filed 12–23–10; 4:15 pm] BILLING CODE 6351–01–P COMMODITY FUTURES TRADING COMMISSION Sunshine Act Meetings 11 a.m., Friday, January 14, 2011. PLACE: 1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room. STATUS: Closed. MATTERS TO BE CONSIDERED: Surveillance and Enforcement Matters. CONTACT PERSON FOR MORE INFORMATION: Sauntia S. Warfield, 202–418–5084. TIME AND DATE: Sauntia S. Warfield, Assistant Secretary of the Commission. BILLING CODE 6351–01–P [FR Doc. 2010–32781 Filed 12–23–10; 4:15 pm] BILLING CODE 6351–01–P COMMODITY FUTURES TRADING COMMISSION Sunshine Act Meetings COMMODITY FUTURES TRADING COMMISSION Sunshine Act Meetings TIME AND DATE: 11 a.m., Friday, January 28, 2011. 1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room. PLACE: and Enforcement Matters. [FR Doc. 2010–32564 Filed 12–27–10; 8:45 am] CONTACT PERSON FOR MORE INFORMATION: BILLING CODE 3510–16–P Sauntia S. Warfield, 202–418–5084. STATUS: Closed. MATTERS TO BE CONSIDERED: Surveillance Sauntia S. Warfield, Assistant Secretary of the Commission. [FR Doc. 2010–32783 Filed 12–23–10; 4:15 pm] 11 a.m., Friday January 21, 2011. PLACE: 1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room. STATUS: Closed. MATTERS TO BE CONSIDERED: Surveillance and Enforcement Matters. CONTACT PERSON FOR MORE INFORMATION: Sauntia S. Warfield, 202–418–5084. TIME AND DATE: Sauntia S. Warfield, Assistant Secretary of the Commission. [FR Doc. 2010–32782 Filed 12–23–10; 4:15 pm] BILLING CODE 6351–01–P BILLING CODE 6351–01–P Sunshine Act Meetings COMMODITY FUTURES TRADING COMMISSION The following notice of scheduled meetings is published pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, 5 U.S.C. 552b. emcdonald on DSK2BSOYB1PROD with NOTICES Sauntia S. Warfield, 202–418–5084. [FR Doc. 2010–32749 Filed 12–23–10; 4:15 pm] Dated: December 21, 2010. David J. Kappos, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. COMMODITY FUTURES TRADING COMMISSION Sunshine Act Meetings TIME AND DATE: DEPARTMENT OF DEFENSE Office of the Secretary of Defense Notice of Advisory Committee Meeting Date Change 11 a.m., Friday, January AGENCY HOLDING THE MEETINGS: AGENCY: Commodity Futures Trading Commission. 7, 2011. PLACE: 1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room. ACTION: The Commission has scheduled two meetings for the following dates: January 13, 2011 at 9:30 a.m. January 20, 2011 at 9:30 a.m. TIMES AND DATES: VerDate Mar<15>2010 22:37 Dec 27, 2010 Jkt 223001 81589 STATUS: Closed. MATTERS TO BE CONSIDERED: Surveillance and Enforcement Matters. PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 Missile Defense Agency (MDA), DoD. Notice. On Tuesday, December 14, 2010, the Department of Defense announced by publication in the Federal Register (75 FR 77848) closed meetings of the Missile Defense SUMMARY: E:\FR\FM\28DEN1.SGM 28DEN1

Agencies

[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Notices]
[Pages 81587-81589]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32564]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

Patent and Trademark Office

[Docket No. PTO-T-2010-0090]


Coding of Design Marks in Registrations

AGENCY: United States Patent and Trademark Office, Commerce.

ACTION: Notice and request for comments.

-----------------------------------------------------------------------

SUMMARY: The United States Patent and Trademark Office (``USPTO'') 
proposes to discontinue its secondary design coding, the practice of 
coding newly registered trademarks in its searchable electronic 
database with design mark codes based on the old paper search 
designations.

DATES: Comments must be received by January 27, 2011 to ensure 
consideration.
    Addresses for Comments: The USPTO prefers that comments be 
submitted via electronic mail message to TMFRNotices@uspto.gov. Written 
comments may also be submitted by mail to: Commissioner for Trademarks, 
P.O. Box 1451, Alexandria, VA 22313-1451, attention Cynthia C. Lynch; 
by hand-delivery to the Trademark Assistance Center, Concourse Level, 
James Madison Building-East Wing, 600 Dulany Street, Alexandria, 
Virginia, attention Cynthia C. Lynch; or by electronic mail message via 
the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web 
site (http://www.regulations.gov) for additional instructions on 
providing comments via the Federal eRulemaking Portal. The comments 
will be available for public inspection on the USPTO's Web site at 
http://www.uspto.gov and will also be available at the Trademark Legal 
Policy Office, Madison East, Fourth Floor, 600 Dulany Street, 
Alexandria, Virginia.

FOR FURTHER INFORMATION CONTACT: Cynthia C. Lynch, Office of the Deputy 
Commissioner for Trademark Examination Policy, by telephone at (571) 
272-8742.

SUPPLEMENTARY INFORMATION:

Background

    Pursuant to 35 U.S.C. 41(i)(1)-(2), the USPTO maintains a publicly 
available searchable collection of all United States trademark 
registrations. Initially, the collection was provided in paper form 
only. Currently, the USPTO provides the collection in electronic form.
    When the trademark collection was maintained in paper form, marks 
were searched in tall cabinets located at the USPTO's Public Search 
Facility. In addition to the public, trademark examiners searched using 
the paper collection to determine whether registration should be 
refused pursuant to 15 U.S.C. 1052(d). Design marks were separated into 
design categories, groups, types, or divisions, subdivided into 
specific representations according to the U.S. class of goods or 
services covered in the registrations, and then arranged in ascending 
order by registration number. Marks with multiple design elements 
generally had to be searched separately, which was both challenging and 
time-consuming.
    In an effort to improve the efficiency of searching for the public 
and USPTO examiners, the USPTO began developing a searchable electronic 
database of marks in 1982. By 1988, the USPTO's trademark examining 
attorneys used the automated system exclusively to conduct their 
searches. The USPTO also began to provide public access to the 
trademark database of active registered and pending marks through the 
Public Search Facility and later on the USPTO Web site.
    When developing the new automated search system, the USPTO also 
developed a new numerical design code system, modeled after the 
International Classification of the Figurative Elements of Marks 
(``USPTO Design Classification''), which was intended for an electronic 
environment and would enable searching multiple design elements in one 
search. In this system, each design element is generally assigned a 
six-digit numerical code: the first two digits indicate the category 
type (e.g., category 01 is celestial bodies, natural phenomena, and 
geographical maps), the next two digits indicate the division (e.g., 07 
is globes), and the last two digits indicate the section (e.g., section 
05 is globes held by a human). This numerical design code system is 
more robust than the paper search design code system, which relies 
exclusively on a word or term to identify a design element and cannot 
achieve the level of detail of the numerical system.
    In conjunction with the new design code system, the USPTO also 
provided (and continues to provide) a Design Search Code Manual 
(``Manual'') that includes an index, provides guidance on and examples, 
cross-references related material, and gives tips on searching using 
this system. The Manual is available to the public on the USPTO Web 
site.
    In 2002, the USPTO submitted a report to Congress detailing a plan 
for the removal of a portion of its paper search collection. However, 
in response to public concern about relying exclusively on the 
electronic system, the USPTO decided to temporarily retain the paper 
collection of registrations with design coding, while improving the 
accuracy of its electronic database, and modified its plan accordingly.
    In 2007, the USPTO submitted a new report to Congress with updated 
information about the improved accuracy of its electronic database and 
USPTO Design Classification coding, microfilmed all paper trademark 
registrations that include design elements, and removed the entire 
paper search collection from its search facility. At the same time, the 
USPTO replicated in the automated search system the paper design code 
system, exhibiting these word-based codes in a new data field for the 
electronic search system called the Trademark Search Facility 
Classification Code Index (``TC Index''). The TC Index allowed those 
who wished to search using the old paper designations to continue to do 
so in the electronic database.

Proposed Changes

    After more than three years of coding under both the TC Index and 
USPTO Design Classification systems, the USPTO proposes to discontinue 
applying the TC Index code system to

[[Page 81588]]

registrations because it is no longer cost-effective and is never used 
by USPTO examining attorneys and rarely used by the public.
    Currently, the assignment of TC Index codes to active U.S. 
trademark registrations in the searchable electronic database costs 
approximately $531,000 per fiscal year for staffing and systems 
maintenance and support costs. Terminating the dual design-coding 
system will result in cost savings and will free the staff to perform 
more valuable services for the public.
    Searches based on the TC Index coding appear to be quite minimal. 
For example, Trademark Electronic Search System (``TESS'') searches 
conducted from January 1, 2010 though July 31, 2010, show that of the 
on-average 2,531,680 searches conducted per month, on average only 229 
employed the TC Index coding to search. By contrast, 2,805 searches, on 
average, relied on the USPTO Design Classification. Thus, the vast 
majority of design searches are currently performed using the USPTO 
Design Classification system. USPTO examining attorneys also rely 
exclusively on the USPTO Design Classification system to search.
    Compared with the USPTO Design Classification coding system, the TC 
Index coding system provides little or no benefit to users that would 
justify the cost to maintain it. The very general categories of designs 
result in cumbersome and time-consuming searches, generating sometimes 
enormous results lists for users to review. For example, the TC Index 
coding system groups stars under the design code SHAPES-ASTRO, which 
encompasses all astronomical shapes consisting of celestial bodies 
(such as the moon, sun, stars, planets, etc.), globes, and geographical 
maps. Searching this TC design code generates approximately 16,001 
registrations and there is no mechanism for restricting the search to 
five-pointed stars, or six-pointed stars, or groups of stars. Users 
must expend considerable time reviewing all registered marks containing 
celestial bodies, globes, and geographical marks to locate the specific 
types of star marks that are of interest to them.
    Searches using the TC Index codes can also provide imperfect 
results. For example, the TC Index does not have a specific code for 
Braille, and images are coded as SHAPES-CIRCLES, which retrieves over 
45,000 search results. Searching large numbers of circles is an 
inefficient way to locate Braille marks. Searches generally are also 
less accurate than those performed using the USPTO Design 
Classification coding system.
    By contrast, advances in coding under the USPTO Design 
Classification and its greater specificity provide the public with more 
precise and accurate search results than are currently available 
through the use of the TC Index codes. Additionally, the USPTO Design 
Classification is applied to pending applications for marks with 
designs as well as to registered marks with designs, thereby making it 
more useful in assessing potential likelihood of confusion. Examining 
attorneys rely solely on the USPTO Design Classification for examining 
and approving applications for marks with design codes for Federal 
registration.
    The USPTO invests heavily in its electronic search systems, and 
commits considerable resources to ensuring the quality of design coding 
under the USPTO Design Classification system. When an application with 
design elements is filed, specially trained Federal employees in the 
Pre-Examination section of the USPTO review the mark drawing and assign 
USPTO Design Classification codes. In 2008, the USPTO amended the Rules 
of Practice in trademark cases to require a description of any mark not 
in standard character, in order to obtain the applicant's 
characterization of design elements to assist the USPTO in making 
accurate and comprehensive design-coding determinations. For example, 
employees use the applicant's mark description to clarify ambiguous 
design elements, thereby promoting correct design coding. The USPTO 
continues to provide comprehensive training to Pre-Examination 
employees on coding marks with design elements to ensure accuracy in 
coding. In addition, the USPTO performs quality review of the work of 
the employees, which improves confidence in the consistency and 
accuracy of the design coding.
    The design coding in an application is reviewed again when a mark 
with design elements is assigned to a well-trained examining attorney 
to determine whether Federal law permits registration. The examining 
attorney reviews the mark, the design codes, and the mark description 
and may determine whether codes should be added or deleted. In 2008, 
the USPTO also provided rigorous training to its Legal Instruments 
Examiners, who assist in reviewing and updating application and 
registration data, on coding under the USPTO Design Classification. 
This review of design coding by different groups at the USPTO has 
greatly increased accuracy and decreased subjectivity in coding.
    The USPTO Design Classification codes are also subject to external 
review by the public, which further ensures correct design coding. Each 
applicant for a mark that includes a design element receives a notice 
from the USPTO identifying the USPTO Design Classification codes 
assigned to their mark and providing detailed instructions on how to 
suggest additions or revisions to the assigned codes. Since 2005, the 
USPTO has sent approximately 367,000 such notices. These notices 
provide applicants with an opportunity to enhance the quality of the 
design coding of marks with design elements.
    After a mark registers, filing receipts for post-registration 
filings submitted via the Trademark Electronic Application System 
notify registrants of the ability to request additions or corrections 
to the USPTO Design Classification codes assigned to their registered 
marks. Furthermore, upon acceptance of a registrant's Declaration of 
Use and/or Excusable Nonuse of Mark in Commerce under 15 U.S.C. 1058, 
the registration file is referred to USPTO employees for yet another 
review of the design codes assigned to the mark. Upon completion of the 
review, the USPTO notifies the registrant of the USPTO Design 
Classification codes assigned to their registered mark and provides 
information on revising design codes. The USPTO Web site also provides 
information on submitting corrections or additions to design codes in 
trademark applications and registrations. Even members of the public 
may submit a design coding suggestion. These measures all help to 
ensure a high level of coding accuracy.
    The USPTO also updated the Manual in 2006 to allow for greater 
precision in identifying and coding designs. Many of the larger design-
code sections were modified to create smaller sections. For example, 
three new design code entries for stars were added, which allow users 
to narrow searches to specific types of stars. These changes result in 
faster and more efficient electronic searches with little irrelevant 
data returned.
    In view of the widespread use of the USPTO Design Classification 
system, its clear advantages and the limited use of the TC Index 
system, the impact of discontinuing coding based on the TC index 
appears minimal. The public and the USPTO will realize efficiencies. 
The USPTO will be able to devote more of its limited resources to the 
maintenance and improvement of the USPTO Design Classification system, 
which is more widely used by the public. All existing registrations 
coded with paper search designations will remain available in TESS and 
on microfilm. Design-coding

[[Page 81589]]

using the USPTO Design Classification system has continually improved 
through internal and external review of the coding and through internal 
training and quality-review procedures. The USPTO Design Classification 
system provides more accurate results, is available to all members of 
the public through the Internet, and is exclusively used by the 
examining attorneys at the USPTO.
    Accordingly, the USPTO hereby gives notice of its intent to 
discontinue coding design marks with paper search designations. Any 
interested member of the public is invited to provide comments on this 
plan within thirty (30) days. The USPTO is providing this opportunity 
for public comment because the USPTO desires the benefit of public 
comment on the proposal; however, notice and an opportunity for public 
comment are not required under 5 U.S.C. 553(b) or any other law. See 
Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) 
(stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not 
require notice and comment rule making for `` `interpretative rules, 
general statements of policy, or rules of agency organization, 
procedure, or practice.' '' (quoting 5 U.S.C. 553(b)(A)). Persons 
submitting written comments should note that the USPTO may not provide 
a ``comment and response'' analysis of such comments as notice and an 
opportunity for public comment are not required.

    Dated: December 21, 2010.
David J. Kappos,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2010-32564 Filed 12-27-10; 8:45 am]
BILLING CODE 3510-16-P