Trademark Application Specimens of Use: What is an Acceptable Specimen of Use?
For Goods: In general, an acceptable specimen must show use of the mark affixed to the goods themselves or the packaging for the goods (i.e., packaging, product itself, labels, tags). Alternative uses may also be acceptable, such as use of the mark on instruction manuals or product information inserts that travel with the goods and on point of sale displays.
It is extremely important to understand that a mark is not considered to be “in use” for trademark application and registration purposes until the goods have been transported in U.S. interstate commerce in the ordinary course of trade. Simply advertising the goods or offering them for sale is not sufficient.
Alternatively, however, one may “use” a mark for goods in, what is known as, “point of sale displays” and still qualify for trademark registration.
For Services: In general, an acceptable specimen includes advertising brochures, flyers, and web pages that show use of the mark in connection with the services. The test employed by the U.S. Patent and Trademark Office is whether the specimen shows use of the mark in a manner that would be perceived by purchasers as identifying the applicant’s services and indicating their source. For example, a specimen that only shows use of the mark, with no reference to the services, does not support service mark use.
It is extremely important to understand that a mark is not considered to be “in use” for trademark application and registration purposes until the services have been promoted under the mark and the services have been rendered to third parties in the United States in the ordinary course of trade. Simply advertising the services in any manner absent the rendering of those services does not meet the statutory requirement of use. Furthermore, one must render the services in interstate commerce before a mark can register.
Understanding what an acceptable trademark application specimen of use is may depend upon the facts of each case, including whether the mark is a product name, service mark or slogan and how the mark is actually used in branding. In some instances, for example, although the mark appears in branding, it may be used in a manner that is not acceptable to the Office.