Through the trademark registration process, entrepreneurs, tech startups, and brand owners may face the issue of submitting a “specimen” to the United States Patent and Trademark Office (USPTO). The USPTO defines a specimen as “a real-life sample of how the mark is being used with the goods and/or services identified in the federal trademark application in the marketplace.”
Examples of specimens include product packaging or a website. Examples of unacceptables specimen: Digitally altered materials, printer’s proofs, or otherwise mock-ups. A specimen for trademark registration in the USPTO is generally what consumers actually see when they are purchasing the goods or services. It is a representation of how the mark is used in the marketplace. Generally, it is not enough to show how the applicant might use or plan to use the mark in the marketplace; for example, a label must be the physical label that is being used on the product or packaging in the marketplace where the goods are actually being sold or transported.
Examples of Acceptable Specimens for Trademark Registration in USPTO
- Labels, tags, or containers and packaging for goods are considered to be acceptable specimens of use for a trademark.
- For service providers, specimens may be advertising such as magazine advertisements or brochures.
- Advertising materials are generally not acceptable as a specimen for goods, nor are materials used to carry out your daily business (e.g., invoices, packing slips, etc.).
- Other examples of acceptable specimens include: A photograph of the product showing the mark directly on the product (e.g., the bottom of a coffee mug), Product labels and tags showing the mark (e.g., the label on a t-shirt), Product packaging showing the mark (e.g., detergent soap packaging), Signage used in a product display at a store (e.g., a photograph of the display), A webpage showing or describing the product near the mark and with purchasing information.
How to Prepare a Specimen For Trademark Registration
A specimen provides evidence of bona use of the trademark in commerce and varies by trade. A specimen for a trademark registration for a restaurant or bar may widely differ from a specimen for trademark registration for a technology startup mobile application company in the field of dating. The decision of how, when and what to file as a specimen is important in the registration process because if the specimen is rejected, it may legally impact the integrity of the resultant registration, or at the very least, cause delays in federal trademark registration. Consultation with an experienced trademark attorney on what is required to satisfy specimen requirement for federal trademark application will guide entrepreneurs, technology startups, and other brand owners in preparing for trademark registration, understanding timelines as to when a specimen is required, and what materials can constitute a specimen for the specific classification in which trademark registration is sought.
Author: David N. Sharifi, Esq. is a Los Angeles based intellectual property attorney and technology startup consultant with focuses in entertainment law, emerging technologies, federal trademark registration, and the “Internet of Things”. David has been recognized as one of the Top 30 Most Influential Attorneys in Digital Media and E-Commerce Law by the Los Angeles Business Journal. Office: Ph: 310-751-0181; david@latml.com.
The content above is a discussion of legal issues and general information; it does not constitute legal advice and should not be used as such without seeking professional legal counsel. Reading the content above does not create an attorney-client relationship. All trademarks are the property of L.A. Tech & Media Law Firm or their respective owners. Copyright 2017. All rights reserved.
