Understanding Trademark Specimens
A Guide for Small Business Owners
As a small business owner, protecting your brand is crucial. One way to do this is through trademark registration with the United States Patent and Trademark Office (USPTO). A key component of this process is submitting acceptable specimens that demonstrate how your trademark is used in commerce. In this post, we’ll explore what specimens are, why they are important, and how to ensure your submission meets the USPTO’s requirements.
What is a Specimen?
A specimen is a real-life example of how your trademark is used in the marketplace. It’s the evidence that shows the USPTO how you are actually using your trademark with your goods or services. Essentially, it’s what consumers see when they are considering purchasing your products or services. For goods, a specimen might be a label or tag attached to your products, packaging displaying your trademark, or a screenshot of a website where your products are sold. For services, it could be an advertisement, brochure, or even signage at the place of business.
Why Are Specimens Important?
Specimens are vital because they provide proof that your trademark is being used in commerce. This usage is necessary for the registration of your trademark under the “use in commerce” basis. If you are filing based on “intent to use,” you will need to provide specimens after you begin using the trademark in the marketplace.
When to Submit a Specimen
Use-in-Commerce Applicants: You should include a specimen with your initial application.
Intent-to-Use Applicants: Submit a specimen after your initial application, after receiving a Notice of Allowance (NOA).
Requirements for Acceptable Specimens
To be acceptable, a specimen must:
Be a real example of your trademark in use in commerce.
Show your trademark directly associated with the goods or services listed in your application.
Depict the exact trademark as shown in your application.
Demonstrate your trademark as a source indicator for the goods or services.
Be in an appropriate format.
For Goods:
Labels and Tags: A photograph of a label or tag attached to the goods showing the trademark.
Packaging: A photograph of the product packaging displaying the trademark.
Webpages: A screenshot of a webpage selling the goods, including the URL and the date accessed or printed.
For Services:
Advertisements: Screenshots or photos of online or printed advertisements showing the trademark.
Signage: Photographs of business signs displaying the trademark at the place where services are rendered.
Marketing Materials: Scanned copies of brochures or leaflets showing the trademark associated with the services.
Common Specimen Refusals and How to Avoid Them
The USPTO may refuse your specimen for several reasons:
Not Showing the Trademark: If the specimen doesn’t clearly show your trademark or shows a variation.
Not Used with Listed Goods/Services: If the specimen doesn’t show use with the specific goods or services in your application.
Not in Actual Use: If the specimen is a mock-up, digitally created image or used only internally.
Incorrect Type for Goods/Services: For example, an advertisement is not an acceptable specimen for goods.
To avoid refusals, ensure your specimen meets all the criteria listed above. If your specimen is refused, you can:
Submit a verified substitute specimen.
Provide the URL and date for webpage specimens.
Change your filing basis or withdraw your AAU.
Submit evidence that the specimen is used at the point-of-sale.
Submitting the correct specimens is a critical step in the trademark application process. It’s important to provide real-life examples that clearly show how your trademark is used in commerce. By understanding the requirements and common pitfalls, you can avoid delays and increase the likelihood of successful registration. If you have any questions or need assistance with your trademark application, feel free to contact our office for expert guidance.
About the Author
Amanda Bynum is an experienced attorney practicing criminal defense and intellectual property law. With a passion for legal education and helping small businesses protect their brands, Amanda provides comprehensive legal services and valuable insights through her blog at AJB Law Firm, LLC.
