When applying for a trademark with the United States Patent and Trademark Office (USPTO), a critical aspect of the application process is attaching an appropriate specimen for your goods and/or services. The specimen serves as proof to the USPTO that your trademark is being used in commerce, which means it is an actively functioning source identifier to the public for your goods or services. Providing an improper specimen is a common cause for application rejections, particularly for those who submit their application without the assistance of an attorney. This article gives an overview of some of the key requirements for a proper specimen to help you avoid common pitfalls; however, because circumstances can vary, working with an attorney is still recommended as the best way to avoid any potential issues with the USPTO.

What Is a Trademark Specimen?

Understanding terms is an important place to start. There are many aspects of the trademark application process that use less common, or potentially unfamiliar, terminology to request items or information. If you want to increase the likelihood of success for your trademark application, it’s important to understand not only what a specimen is but also what its purpose is.

A trademark specimen is a sample or example of how you are actually using the mark you applied for “in commerce,” i.e., when selling or marketing to the public across state lines. It should not show abstract ideas, like mockups, but, instead, show your mark in real-world use, either for goods (products), services, or both, depending on

the nature of your trademark application. The main purpose of attaching the specimen is to demonstrate to the USPTO that your applied for trademark is associated with your applied for goods or services in the minds of consumers.

Goods vs.Services: Different Specimen Requirements

As mentioned already above, depending on whether your trademark application is for goods or services, or some combination of both, what you will need to provide for an acceptable specimen will differ.

Specimen for Goods

When applying for a trademark on goods (physical products), it’s helpful to focus on showing your applied trademark as it appears in connection with those goods at the point of sale. Potential examples include:

Product labels or tags:  This can include tags attached to the actual product, labels on the packaging, or labels directly affixed to the product.

Product packaging:  Such as boxes, containers, or wrappers.

Online store displays:  If your product is sold online, screenshots of the product listing on your website showing your mark along with a purchase option (i.e., "Add to Cart" button), may be acceptable.  *Be careful with this option, though.  For instance, linking to third-party websites for the actual purchase can cause issues.*

Point-of-sale displays:  In-store signage or promotional displays showing your mark in connection with the product.

Instruction manuals:  So long as your mark is prominently displayed and the instructions clearly distinguish what the goods are, this can be a helpful specimen.

When preparing a specimen for goods, it's essential that your mark not only be visible, but it also should be clear from the specimen that your mark is not purely decorative or ornamental. A logo on a t-shirt, for example, can often be considered ornamental unless it is also shown as part of a hangtag or label.

Specimen for Services

When applying for a trademark in connection with the provision of services, focus on showing your specimen being used in the actual advertising or sale of the services. Acceptable specimens can include:

Brochures or flyers:  These should advertise the applied for service(s) and prominently feature your mark.

Website screenshots:  Screenshots of web pages advertising the services can be acceptable, but be sure that the mark is prominently displayed, and the webpage includes a description of the servies as well as an option to purchase or contact the service provider for booking.

Business cards or letterheads:. These should clearly show your mark in connection with a clear indication of the services offered.

Service contracts or invoices:  If your mark appears on documents related to the sale or provision of services, this can serve as a proper specimen.

Again, your specimen should clearly show your applied for mark as well as advertising and/or purchasing information for the services.

What if You Don’t Have One of These Specimen or Already Received a Rejection Letter?

If you are not yet ready to provide the type of specimen listed above for your goods or services, you can consider a Section 1(b) or Intent to Use trademark application, which allows for the filing of a Statement of Use, with a specimen, at a later date. However, it’s important to consider your business’s projected timeline for providing these goods or services when applying for an Intent to Use application because you can incur added costs, especially if you end up needing to file for extensions on your Statement of Use deadline.

If you have already received a rejection of your specimen by the USPTO, there is an option to convert your trademark from a 1(a) Use in Commerce application to a 1(b) Intent to Use and submit a specimen again at a later time. There are some prosand cons to this conversion so it can be good to speak with an attorney if you are in this position, especially if you do not know how to fix your specimen. Additionally, it’s possible that you may already have an appropriate specimen, but just happened to submit the wrong thing to the USPTO. An attorney can also be helpful in remedying this situation and getting your application back on track. Don’t let your trademark application lapse over a potentially fixable issue!

Other Helpful Tips When Preparing Your Specimen

Specimen must be submitted electronically through the USPTO's Trademark Electronic Application System (TEAS).  The USPTO prefers digital images of the specimen, which can be uploaded in formats like .jpg or .pdf.  It's important to ensure the images are clear, high-quality, and meet the size requirements so the trademark examiner can easily verify your mark's use.

Make sure the mark shown on your specimen matches the version submitted on your application, especially if you are doing an application for a logo or stylized text.  Variations of the mark can lead to rejections.

If you are using a website page, make sure to include the URL and the date you accessed or printed the webpage in your submission.

Should you need to submit an alternate specimen, after receiving a rejection, you will need to sign an affidavit supporting the new, substitute specimen.  The affidavit must state that the substitute or additional specimen was in use in commerce at least as early as the application filing date.  These affidavits are sworn under oath and can carry serious penalties if not ture, so be sure to verify any sworn information.

Submitting a proper specimen is an essential part of the USPTO trademark application process. By ensuring, in advance, that your specimen meets the requirements for your goods and/or services, you can avoid common setbacks and avoid wasting costly fees. Taking the time to prepare a clear and compliant specimen can not only significantly increase your chance of obtaining trademark approval but also helps strengthen and protect your brand as well. If you have questions about your specimen or would like an attorney to assist you with putting together your specimen, please reach out to us at Davis, Burch & Abrams and schedule a time to speak with our experienced trademark attorney, Destinee Byers.