Specimen of Use
Trademarks provide a way to protect short phrases, designs, words, and symbols that are used to identify and distinguish a source of goods and/or services. Even though registering with the United States Patent and Trademark Office (USPTO) is no longer a requirement to obtain trademark protection, it has its benefits. For example, federal registration gives the legal presumption that the registrant is the trademark owner, which means he or she has the exclusive legal right to use the mark.
If you do decide to register a trademark with the USPTO, you must follow certain procedures. A general trademark application will include: (1) the name of the applicant, (2) an address and name for communications between the USPTO and the applicant, (3) a drawing of the mark, (4) the list of the goods and/or services for which the mark will be used, and (5) filing fee(s). Some applications will also require that the applicant submit a "specimen" of use in the application. Failure to include all of the required elements of a trademark application will result in the return of the application and refund of the fees associated with the application.
For more information about this topic, and other types of intellectual property such as copyrights and patents, you can visit FindLaw's section on Intellectual Property.
What Is a Specimen of Use?
A specimen of use is a real-world example of how the mark is being used on goods and/or services. A real-world example means that it is an actual object that bears the mark, not just a photo or drawing of the mark. For goods, a person can submit tags, instruction manuals, containers, labels, or packaging materials. If the mark will be used to identify and distinguish services, an applicant can provide flyers, yellow page listings, websites, and brochures. A business card could be an acceptable specimen of use for services (but not for goods) if the card displays the mark along with the service(s) the mark will be associated with.
How and When Do I File the Specimen?
If you choose to file your application electronically through the USPTO's Trademark Electronic Application System (TEAS), you will need to attach an image of your specimen of use in .jpg format. The image you attach should include as much of the advertisement or label as possible so that you can show the context in which the mark is being used. If, on the other hand, you file a paper application, the specimen of use should be flat and must be a maximum size of 8 ½ by 11 inches. If, however, you have a sound mark, you may submit an audiotape, compact disc, or videotape as the specimen of use.
When you need to file the specimen of use will depend on the type of trademark application you are filing. If you're filing an application that is based on use, meaning that you are already using the mark in commerce, you need submit one specimen for each class of goods and/or services that was listed in the original application. If you are filing a trademark application that is based on intent to use, you will need to provide one specimen for each class of goods and/or services when you file the Allegation of Use, which is a sworn statement that the mark will be used in commerce. A specimen of use is not required for applications that are based solely on a foreign application or registration.
Getting Legal Help
If you have questions about a specimen of use, or more general questions about trademarks and filing for federal trademark registration, you may want to contact an experienced trademarks attorney in your area.
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