A specimen of use showing that your trademark is being used in commerce must be filed with the USPTO as part of your trademark application. For a 1(a) application for a mark already being used, the specimen is submitted with the initial application filing. For a 1(b) intent to use application, the specimen is submitted later in the process with a separate filing fee. At least one specimen must be submitted per class that is claimed on the application.
For goods, the specimen of use must either show the mark being used in commerce on or in connection with the associated class of goods. This means that the exhibit needs to prominently display the mark and show that there is a current ability to purchase the relevant goods. Labels, tags, packaging, and sales displays that prominently display the proposed mark are examples of specimens that meet the USPTO’s criteria. Websites that prominently display the mark and provide a means for ordering the goods make great specimens as well.
For service marks, the specimen must show the mark associated with the sale or advertising of the identified class of services. Again, the specimen needs to prominently display the mark and provide information on how to purchase the associated service. Marketing materials, signs, and websites that prominently display the mark and advertise the services offered can be submitted as specimens for service marks.
If the goal is to efficiently work through the trademark registration process, and for small business owners it always is, then correctly formatting the specimen exhibit and submitting accurate descriptive information with the specimen is critical. The examining attorney assigned to your application will not accept a specimen if it does not meet the USPTO’s strict criteria. An office action for improper specimen will not only delay the registration process, but it could lead to a final refusal of your application, leaving you to start the process over from square one.
It’s important for small business owners to remember that (1) filing a trademark application initiates a formal legal proceeding; and (2) that the specimen of use is being submitted as formal evidence that the trademark is being used correctly. That is why correctly formatting and submitting specimens of use is so important and is included as part of my Flat Fee Trademark Registration Package. Getting this part of the application submitted correctly is vital to an efficient registration experience. Contact Alex to get started on your trademark application.