When filing an application alleging use of a trademark, you have to provide proof of that use for goods and/or services in commerce.
Let’s talk about goods first. The specimen must show actual use of the mark on the goods, on containers or packaging for the goods, on labels or tags affixed to the goods, or on a display associated with the goods. Mock-ups, digitally altered photos, and retouched photos are unacceptable.
The modern specimen can consist of a website screenshot. If you’re going to submit one of these, though, you’re going to need to make sure the URL and Date Accessed information is visible in the specimen or otherwise included in the application. If you don’t do this, you will get an Office Action. Also, if you sell goods, the website link should be a point-of-sale display. The Trademark Manual of Examining Procedure provides examples of good website specimens for goods, showing how a mark is associated with goods, the goods are pictured and described, and the point of sale information is provided.
For trademarks that are a scent, flavor, or similar non-traditional mark, you must mail the scented or flavored goods to the USPTO, and you cannot submit these electronically.
Advertising material is generally not acceptable as a specimen for goods. If materials function simply to promote the sale of goods, this does not support trademark use. If you want to use folders, brochures, or other materials that describe goods and their characteristics or serve as advertising literature, you must submit evidence of point-of-sale presentation.
Unlike for goods, a specimen for services can include advertising. The specimen must show direct association between the mark and service. You can submit letterhead, business cards, or invoices if they create a direct association between the mark and services you provide.
If your services are entertainment services, you can submit a photograph of the group with the name also displayed in the photograph, such as on a banner or on the bass drum.
The USPTO acknowledges issues associated with technology-related services because those areas are evolving so rapidly. A practical example of specimens for technology services includes a screenshot of a log-in screen with the name and/or logo and services displayed for cloud-based services.
Your trademark lawyer can help make sure you file the correct specimen!
Please note that the information contained in this article is intended for general informational purposes only and not as specific legal advice. The facts of your situation may differ from this general information. It is not intended to and does not in any way establish an attorney-client relationship.
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