What is an Ornamental Specimen Refusal?

A “ornamental specimen” refusal is a type of “Specimen” refusal issued by the United States Patent and Trademark Office (USPTO) when a trademark applicant provides a specimen of use of their mark that does not show how the mark is actually used on the goods or services offered for sale. This can occur when the trademark is being used as a decorative feature on the goods, rather than as a source identifier for the goods.

In order for a trademark to be registered, it must be used in a manner that is distinctive, meaning that it serves to identify the goods or services offered by a particular source. If the trademark is used merely as an ornament, it may not serve to identify the source of the goods and may not be registrable.

If an applicant receives an ornamental specimen refusal, they will need to provide a new specimen of use that clearly demonstrates how the mark is used in a manner that is source-identifying. This may involve changing the appearance of the mark on the goods or services, or changing the way the goods or services are marketed to consumers.

Clothing

In the case of clothing, a specimen should clearly show the design in use as a trademark, such as by including it prominently on the clothing label or tag, or by including it on advertising or packaging materials.

If the applicant is unable to provide sufficient evidence of the design’s source-indicating function, the application may be abandoned or the design may need to be modified to be eligible for trademark protection.