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What is a trademark specimen?

A trademark specimen is evidence submitted to the United States Patent and Trademark Office (USPTO) to show that the mark has been used in the manner set forth in the trademark application.  A proper specimen is required before registration.  Specimens are submitted at the time of filing the application or, when the application is filed on an intent-to-use basis, with the Statement of Use after the application has reached allowance.

There are two categories of specimens: specimens for goods and specimens for services. Examples of specimens for goods include tags, labels, instruction manuals, containers, photographs that show the mark on the goods or packaging, and displays associated with the goods at their point of sale.  TMEP §§904.03 et seq.  Examples of specimens for services include signs, photographs, brochures, website printouts and advertisements that show the mark used in the sale or advertising of the services.  TMEP §§1301.04 et seq.

WORD OF CAUTION:   When you have filed your application on an intent-to-use basis, it is important to submit proper specimens with your Statement of Use.  If the specimen is rejected, you will need to submit a replacement specimen with an affidavit or declaration stating “The substitute specimen was in use in commerce prior to the expiration of the deadline for filing the Statement of Use.”  TEMP §904.05 et seq.  If you have no additional specimens that were in use prior to the deadline, your application will be refused.

It is important to have your trademark lawyer evaluate your specimens.  Be sure to submit the specimens ahead of time so that your trademark lawyer can advise you on how to properly use your mark in order to create proper specimens.

Written by
Dan Cotman
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