Acceptable Trademark Application Specimens of Use – What are Point of Sale Displays?
In my blog post here, titled “Trademark Application Specimens of Use: What is an Acceptable Specimen of Use?” I mentioned there are instances when trademark applicants may need to rely upon a “point of sale display” to show proper trademark use for products if they don’t use the mark in a traditional sense (i.e., labels affixed to the goods, mark depicted on the goods, mark depicted on packaging). In those cases, the Applicant may submit, what is known as, a “point of sale display.” Point of sale displays must adhere to strict guidelines, of which I have discussed and outlined below.
What are Point of Sale Displays?
A point of sale display (a/k/a displays associated with the goods) must be associated directly with the goods being offered for sale. The display must depict the trademark prominently. Displays associated with the goods comprise various types of point-of-sale materials, such as banners, window displays, menus, product literature used by outside sales representatives and even websites that allow for online orders.
The “displays” must be designed to catch the attention of purchasers and prospective purchasers as an enticement to make a sale. Furthermore, the display must prominently depict the applied-for mark and associate it with, or relate it to, the goods such that an association of the two is inevitable.
Important note: Promotional materials, such as brochures and webpages, that simply describe the goods and their characteristics or serve only as advertising literature are not per se “displays,” thus do not qualify as acceptable specimens of use for trademark application and registration purposes (for products).
In order to rely upon a point of sale display as a trademark application specimen of use for goods, the display must contain each of the following items:
(1) use of the subject trademark;
(2) near a picture of the goods or detailed description of the properties of the goods such buyers know precisely what they are buying; and
(3) specific information on how to order the goods, i.e., telephone number or online shopping cart.
Trademark Manual of Examining Procedure §903 illustrates how the following webpage is an acceptable point of sale display, as it meets all three requirements:
- Remember, the display must directly associate the mark and goods such that an association of the mark and goods is inevitable. In other words, the mark must be perceived as the brand name for the goods. Using a trademark on the top of a website, for example, that would be perceived as a service mark for online retail store services and not the brand name for the goods in question would not be an acceptable display associated with the goods for trademark application purposes.
- The U.S. Patent and Trademark Office may not accept point of sale materials that do not clearly provide information on how to directly place an order.
The next time you decide to launch a new trademark for goods, but have no plans to affix the mark directly to the goods in any manner, you should consider alternative types of specimens of use for securing registration.
Roger Bora is a former USPTO trademark examining attorney, a partner in a major law firm, the creator of this blog and, most importantly, a husband and a father of an amazing 13-year-old-son.