A “specimen” in the context of trademark law refers to a sample of the way a trademark is being used in commerce. A specimen is required to be submitted along with a trademark application to demonstrate to the trademark office (such as the USPTO) that the mark is actually being used in commerce in connection with the goods or services listed in the application. The specimen helps the trademark office determine whether the trademark satisfies the requirements for use in commerce and is eligible for registration. Common examples of specimens include website screenshots, product labels, or advertising materials that show the trademark being used with the goods or services identified in the application.
A “specimen” is real-life evidence of how you are actually using your trademark in the marketplace with the goods or services in your application. It’s what consumers see when they are considering whether to purchase the goods or services you provide in connection with your trademark.
The specimen must show the mark in connection with the goods or services you identified in the application. Correctly identifying your goods and services is one of the most critical aspects of your application and a failure to correctly list the goods and services with which you use the mark may prevent you from registering your mark. One of the Trademark rules restricts amendments to the identification of goods or services: you may not expand or broaden goods and/or services. If the identification is incorrect and needs to be updated, then a new application would be required (see option below).
An acceptable specimen must:
- Be a real example of how you use your trademark in commerce in providing your goods or services (not a mock-up, printer’s proof, digitally altered image, rendering of intended packaging, or draft of a website that shows how your mark might appear).
- Show your trademark used with the goods or services listed in your application.
- Depict the same trademark as shown on your drawing.
- Show your use of your trademark (not used by someone else, such as press releases sent exclusively to news media).
- Be an appropriate type of specimen based on whether you have goods or services. For example, advertising material is an acceptable specimen for services, but not for goods.
- Show your trademark used in a way that directly associates the mark with the goods or services.
- Show your trademark used in a way that consumers would perceive it as a source indicator for the goods or services in your application (it functions as a trademark).
Also remember, it is not enough to show how you might use a specimen in the marketplace. It may not be a digitally-altered image or photograph, computer illustration, artist’s rendering, printer’s proof, or similar mock-up that simply shows what the mark looks like. You must submit a photograph, screenshot, or similar representation of the actual thing.
Finally, a specimen is not the same thing as a drawing. A drawing shows what the mark is; a specimen shows how the mark is used.
For goods, a specimen shows your trademark as actually used in commerce with your existing goods in a way that directly associates the trademark with the goods. For example, a specimen could be a photograph of the mark on the goods themselves, a label or tag attached to your goods that shows your trademark, a product container or packaging showing your trademark on the packaging, or a website displaying your trademark where your goods can be purchased or ordered. Remember that advertising brochures, business cards, invoices, and other internal and marketing materials are not acceptable specimens for goods. You must show the use of the mark on the goods themselves or on the labeling or packaging for the goods. Examples of specimens for goods include:
- The goods themselves. For example, a photo of your goods showing your trademark on it.
- Labels and tags affixed to the goods. For example, a photo of the label or tag with your logo attached to the goods.
- Packaging for the goods. For example, a photo of your logo on the packaging of your goods.
- Sales display signs/placards where the goods are sold. For example, a photo of a counter display for your goods in a store that uses or sells those products.
- Software as goods. For example, a screenshot of your software launch screen with the trademark in an introductory message box, or a screenshot of a webpage with enough information to download the software and the trademark appearing in the title bar.
- Webpages selling the goods. For example, a screenshot of a webpage showing your goods for sale, the price, and a shopping cart button.
For website specimens for goods, it must show the use of the mark directly associated with the goods and there must be of a point-of-sale nature. This means that this type of display specimen must include the following:
- A picture or sufficient textual description of the goods;
- The mark associated with the goods; and
- A means for ordering the goods such as a “shopping cart” button/link, an order form, or a telephone number for placing orders.
- Webpage specimens must include the URL and the date the page was accessed or printed. You can provide the URL and access or print date for a webpage specimen in the following ways.
Specimens for downloadable software include instruction manuals or screen printouts from:
- webpages showing (a) the mark associated with the software and (b) ordering or purchasing information or information sufficient to download the software,
- the actual program while running that shows the mark in the title bar, or
- launch screens that show the mark in an introductory message box that appears after opening the program.
For services, a specimen shows the trademark as actually used in commerce with your existing services in a way that directly associates the trademark with the services. Advertising and marketing materials are acceptable, so long as the mark is shown being used in the advertising or providing of the services and the specimen references those services. For example, a specimen could be an advertisement, brochure, website printout, or other promotional or marketing material which shows your trademark used for the services, business signs where the services are rendered showing your trademark, or a service vehicle showing your trademark. Many different types of materials are acceptable as specimens for services, as long as the specimen both shows the mark and references the provided services. Examples of specimens for services include:
- Online advertising or printed matter that shows a direct link between your trademark and the services. For example, a photo or screenshot of a newspaper or online advertisement for your services.
- Television and radio commercials for the services. For example, an MP3 file of a television commercial for your services.
- Invoices showing a direct link between your trademark and the services. For example, a photo of an invoice of goods or services sold with your trademark at the top of the invoice.
- Business cards and letterhead that show a direct link between your trademark and the services. For example, a photo of business cards and letterhead for your services.
- Marketing materials that show a direct link between your trademark and the services. For example, a photo of brochures and leaflets advertising or marketing your services.
- Signage where the services are rendered. For example, a photo of business signs on the front of a store where your services are.
- Materials used in the sale of the services. For example, a copy of an instruction manual showing the trademark that is part of the goods sold.
- Materials used in the providing/rendering of the services. For example (1) A photo of a menu for restaurant services. (2) A photo of a band performing on stage with the band’s name displayed during the performance (e.g., the band name on the band’s drum) for live musical entertainment services). (3) A screenshot of the title and launch screens for ongoing television programs and video game entertainment services.