What is a Trademark Specimen? You'll need to Know What a Trademark Specimen Is and What the USPTO Requires If You Want to Register Your Trademark

When registering a trademark with the United States Patent and Trademark Office (USPTO) one must submit a specimen, that is, something showing the use of the mark in commerce.  But what qualifies as a specimen?  According to the USPTO, a specimen is “an actual example of how you are using the mark in commerce on or in connection with the identified goods and/or services.”  The USPTO requires a “proper specimen,” which “shows the mark on the actual goods or packaging for the goods.”  These proper specimens for goods include “a tag or label for the goods; a container for the goods; a display associated with the goods; or a photograph of the goods that shows use of the mark on the goods.”

The Trademark Trial and Appeal Board (TTAB) has held that a website is a proper specimen under the “display associated with the goods” language.   Website displays, as well as catalogs, must meet the following requirements: 1. they must contain a picture of the goods; 2. the mark must be displayed close enough to the picture of the goods to associate the mark with the goods; and 3. they must contain information necessary to order the goods.  Catalogs that operate as references to available parts, and not as a means to place orders, have been held not to be proper specimens under the “display associated with the goods” language where they merely reference a website that does not allow online ordering.  As the TTAB has said previously,  “the mere inclusion of a phone number, Internet address and/or mailing address on an advertisement describing the product is not in itself sufficient to meet the criteria for a display associated with the goods. There must be an offer to accept orders or instructions on how to place an order.”  TMEP §904.03(h). 

Specimens for services must “show the mark used in the sale or advertising for the services.”  These include: “a sign; a brochure about the services; an advertisement for the services; a business card or stationery showing the mark in connection with the services; or a photograph showing the mark as used in rendering or advertising the services.”  The USPTO requires a reference to the services on the specimen, not just a display of the mark.

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