Specimens: The Trademark Kind

Are you thinking about registering a trademark with the United States Patent and Trademark Office (the “USPTO”)? Registering a trademark can be a very smart and effective decision for your business, but it isn’t quite as simple as you might think it is. To register a trademark you need to provide a considerable amount of information about the mark itself, the goods or services provided under it, how the mark is used, etc. One of the most important things that you will be asked to provide is a specimen of use. If you’re currently thinking, “What in the world is a specimen of use?” don’t worry, you’re not alone. I was equally as confused when I first heard the term.

A specimen of use is a real-world example of how you use your trademark in the sale or advertisement of the goods or services provided under your mark. Your specimen of use is evidence that should prove your trademark is, in fact, actually being used in commerce for the goods or services you have specified in your trademark application. Thus, it must be something real – not a drawing, mock-up, or mere photo of the mark itself. Your specimen should include the mark itself, an indication of the goods or services provided under it, and something showing that the goods or services are available for purchase.  Specimens of use for goods include photographs of the goods as sold, tags, labels, etc. A specimen for goods should generally display the physical object(s) bearing the trademark. Specimens of use for services can be anything from a webpage to a brochure, flyer, or invoice. It is important to note that any advertisement, flyer, brochure, etc. used as a specimen for services needs to be something that is actually in use at the point-of-sale. A specimen for services cannot be something that merely provides information.

Webpages are commonly used as specimens for services. For example, someone with a consulting business may use a screenshot of one of their webpages as a specimen. The best way to do this is to find a webpage that has the trademark on it, a description of the services provided, and a way for customers to purchase those services. The screenshot should also include the URL and the date of access (basically a screenshot of your entire screen rather than just the webpage). The date of access and URL must be listed again on the application itself. The USPTO recently updated their system to include designated spaces for this information, making it a bit easier to remember to include. If this information is not provided you will almost certainly get an Office Action preventing your application from moving forward until you correct it.

Providing a good specimen of use can be difficult. A trick I use is to think about it from the perspective of the customer or client. Where do your customers see the mark? Is there a webpage they can go to or something else they can use to purchase your goods and services that has the mark displayed on it? That should help point you in the right direction when trying to provide an acceptable specimen of use for your trademark application.

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