In an application under Trademark Act §44, 15 U.S.C. §1126, the drawing of the mark must be "a substantially exact representation of the mark as it appears in the drawing in the registration certificate of a mark duly registered in the applicant’s country of origin." 37 C.F.R. §2.51(c); TMEP §1011.01. The standard for determining whether the mark in the drawing agrees with the mark in the foreign registration is stricter than the standard used to determine whether a specimen supports use of a mark in an application under §1, 15 U.S.C. §1051. TMEP §1011.01. The drawing in the U.S. application must display the entire mark as registered in the foreign country. The applicant may not limit the mark to part of the mark shown in the foreign registration, even if it creates a separate and distinct commercial impression.

Exception: Non-material informational matter that appears on the foreign registration, such as net weight or contents, or the federal registration notice, may be omitted or deleted from the drawing. See In re Hacot-Colombier, 105 F.3d 616, 619 (Fed. Cir. 1997) (citing United Rum Merchs. Ltd. v. Distillers Corp. (S.A.) Ltd., 1988 TTAB LEXIS 47, at *9-10 (1988)).

When the mark on the drawing does not agree with the mark on the foreign registration, the applicant cannot amend the drawing of the mark if the amendment would materially alter the mark on the original drawing. 37 C.F.R. §2.72(c); TMEP §§807.14–807.14(f), 1011.03.

If the U.S. application has a black-and-white drawing, and color appears in or is claimed or described as a feature of the mark in the foreign registration, then the mark in the U.S. drawing does not agree with the mark in the foreign registration. In such case, the examining attorney must inquire whether the foreign registration includes the color(s) shown, claimed or described as a feature of the mark. TMEP §1011.01. In general, the applicant may amend the black-and-white drawing in the U.S. application to agree with the mark shown or color claimed or described in the foreign registration, and provide an appropriate color drawing, claim and/or description, unless the proposed amendment would be a material alteration. See 37 C.F.R. §2.72(c); TMEP §§807.14, 1011.03.

See TMEP §1011.01 for information regarding a U.S. application with a black-and-white drawing, and color appears in or is claimed or described as a feature of the mark in the foreign registration, but the foreign registration is not intended to be in color.

If the U.S. application has a color drawing and color claim, the same colors must be part of the mark in the foreign registration. Whether the drawing in the U.S. application can be amended depends on whether the amendment would materially alter the mark. If the U.S. application has a color drawing but the mark in the foreign registration is shown in black and white with no color claim or description, the applicant must either: (1) amend the drawing in the U.S. application to a black-and-white drawing, state that color is not claimed as a feature of the mark, and delete any inconsistent claim to or description of color, if the amendment would not be a material alteration; or (2) delete the §44 basis and proceed under §1. However, if color is claimed or described as a feature of the mark in the foreign registration, the applicant will be required to provide evidence that the colors shown in the mark in the U.S. drawing are in the mark in the foreign registration and that those colors appear in the same location in the U.S. mark and foreign registration. See TMEP §1011.01 regarding the type of evidence that may be submitted to establish that the color appearing in the U.S. application and foreign registration agree.

See TMEP §1214.02 regarding the agreement of the mark on the drawing with the mark on the foreign registration in an application that seeks registration of a mark with a "phantom" or changeable element.