Trademark Specimens

Whether you are submitting an In Use application, filing a Statement of Use on an Intent to Use filing, or renewing a trademark registration, you will, at some point, need to provide documentation of your trademark being used. A specimen is an image showing the goods or services in use in commerce. For goods, this usually means a digital photo of the product featuring the trademark – something like a label, tag, or menu board. For services, this could also mean a menu, or the sign in front of your business, or a screenshot of your website featuring the trademark in connection with the services.

There are four important things to consider when selecting a specimen:

  1. Accuracy – making sure the trademark appears in the specimen exactly as submitted. For word marks, this means the trademarked word or phrase appearing clearly and on its own, free of added punctuation or descriptors. For design marks, this means the image appearing without any modifications from the image submitted for the application (color being an acceptable change if your design was submitted in black and white).
  2. Clarity – meaning the trademark is both easy to read and obviously accurate. If you submit a word mark for CYCLONE but, on the label pictured in the specimen, the letter “o” appears as a smiley face, an examiner might contend that this does not show the applied-for mark.
  3. Use – your specimen should confirm that your mark is in use currently. This is particularly important when submitting a webpage screenshot (which requires a timestamp be included) but can get somewhat tricky when filing a Statement of Use as we discuss in this blog post about “insurance” extensions.
  4. Purpose – you will need to be able to demonstrate that the mark is actually being used for the listed goods or services. This bears particular consideration when it comes to classes applied for with multiple items (if, for example, you run a shop that sells teas, chocolates, candies, coffee, pastries, kombucha, and burritos – all in class 30 – will you be able to show long term use for all of these?). This is among the reasons that considering a broad class description can be a good choice when applicable: “beer” instead of “stout, porter, pilsner,” “restaurant services” instead of “restaurant services featuring burgers, pizza, seafood, gyros, and artisan iced tea.” Keep in mind that if your application does contain multiple items in one class, you will not need to submit photos of each individual item at the outset, but you will need to be able to prove use in the event of an audit.