How to Choose your Trademark Specimen

The specimen is the proof that you are using your trademark. Trademark law (and by extension, the USPTO) is particular about what qualifies as an acceptable specimen. An unacceptable specimen will result in a refusal of the trademark application. So, it is important to submit an acceptable specimen. The essential rule of thumb is that the specimen must show a close connection between the mark, the goods or services identified in the application, and the purchase of those goods and services. At least one specimen is required for each class of goods or services listed in the application.

The specimen must be an actual example of how you use the mark in commerce. This means that, in particular, a prepress proof or other similar template documents are not acceptable as specimens.

After you have read this article, you should have a good idea of what your specimen will be. If you’re not sure, please send us what you think is best. Both of Yaymark’s trademark filing packages include verification by a licensed attorney that specimen is adequate. If we think the examining attorney may not accept your specimen, we’ll let you know.

Specimen for Goods

A specimen for a good (in other words, a product offered for sale) must show the trademark usage at the point of sale. For example, the point of sale may be a web page where the consumer can purchase the product. The following are some examples of acceptable specimens:

  • labels
  • tags
  • product packaging or containers
  • signs or displays at a retail location
  • webpages where consumers can order the product

Whatever you decide to submit as the specimen, it must include the mark and demonstrate a clear connection to the goods and to the point of sale. One indicator that the specimen is at the “point of sale” is that the potential consumer has sufficient purchasing information (such as the purchase price and instructions on how to place an order).

For example, a screenshot of a web page would be acceptable as a specimen if the screenshot shows all of the following as associated with one other:

  1. The trademark,
  2. Images or description that show and/or describe a product for sale, and
  3. A “buy it now” or “add to cart” button

Specimen for Services

A specimen for a service may include advertising and marketing materials for the service. Examples of acceptable specimens include:

  • business cards,
  • letterhead,
  • websites,
  • direct mail, and
  • email advertising

The specimen must include enough information that it is apparent that the specimen directly relates to the service in question.

Specimen Format

In most cases, the submitted specimen should consist of a digital image in jpeg or pdf format. Selection of the specimen may depend on whether it is for goods or for services.

Goods

If you use the mark on a product tag, label, or package, then you should take a picture of it. We recommend taking a picture of it as the consumer will see it–for example, take a picture of the tag attached to the product so that both are visible. Likewise, if you use the mark on product packaging, try taking a picture that includes the mark on the packaging and the product inside.

Services

If the specimen is a public-facing website, you can capture a screenshot of the relevant webpage or just tell us the link and we will capture it. If the specimen is something else, take a picture of it and submit the jpeg.

When does the USPTO Require a Specimen?

The USPTO requires specimens for the following filings:

  1. Used-based trademark applications,
  2. Allegations of use, and
  3. Maintenance documents filed after registration.

The USPTO does not require specimens in the initial filings for applications based on a foreign application or foreign registration under Section 44, or for applications based on Section 66(a). However, the USPTO requires specimens in maintenance documents filed after registration for those two types of applications .