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Safety First - Describing Personal Protective Equipment for Proper Classification

Bylined Articles
Sterne, Kessler, Goldstein & Fox P.L.L.C.

As of June 11, 2020, the USPTO’s Official Manual of Acceptable Identifications (ID Manual) has been revised to add, re-classify, and clarify existing entries for personal protective equipment such as masks and gloves.

The USPTO previously accepted the wording “protective face masks” in Class 9; but, since this description can suggest a number of different types of masks from welding masks to sports masks, the USPTO has revised the ID Manual to further differentiate between mask types. Notably, since January of this year, more than 1,000 applications have been filed for goods described broadly as “protective masks” or “protection masks” in Classes 9 and/or 10.

For example, medical equipment and apparatus specifically indicated for use in medical fields is classified in Class 10.

Life-saving apparatus and personal protective equipment (PPE) not otherwise identified or recognized as medical in nature or specified for use in medical fields is classified in Class 9.

This can be confusing because one might think, for instance, that airplane oxygen masks are a type of medical apparatus because they provide oxygen. However, the USPTO appears to distinguish them by use: “aviation oxygen masks,” are classified in Class 9, whereas “oxygen masks for medical purposes” and “respiratory masks for artificial respiration” are classified in Class 10. It may be easiest to think about the specific intended use of the mask or gloves in question, e.g., whether they are intended for use to help protect wearers from injury unrelated to illness such as masks that aid in respiration but also protect one from inhaling chemicals when working in an industrial plant. Other masks that are considered to be protective and arguably life-saving and therefore classified in Class 9 are gas masks, scuba diving masks, and swimming masks.

Masks intended for use by someone with an underlying medical condition such as asthma, e.g. nebulizer masks, are classified in Class 10. Similarly, masks used during a medical procedure, e.g. anesthesia, are classified in Class 10. Below are some examples of the descriptions that are classified in Class 10 and have been added to the ID Manual:

  • Fashion masks being sanitary masks for protection against viral infections;
  • Personal protective equipment (PPE), namely, masks for use by medical personnel;
  • Disposable sanitary masks for protection against viral infections;
  • Sanitary masks made of cloth for protection against viral infection; and
  • Face covers being sanitary masks for protection of viral infection.

This article appeared in the June 2020 issue of MarkIt to Market. To view our past issues, as well as other firm newsletters, please click here.