TMIN: Specimen


Part 8 of Trademark Information Network Series

Published on Apr 20, 2017

This video focuses on what is meant by the term "specimen." It provides examples of acceptable specimens and highlights the differences between a "drawing" and a "specimen." As the "specimen" issue is commonly misunderstood by both initial applicants and registrants making post-registration submissions, watching this video should help you avoid mistakes.


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TRADEMARK INFORMATION NETWORK
BREAKING NEWS

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MARK TRADEMAN, TMIN NEWS ANCHOR:
Like most applicants, you're probably wondering, "What in the world is a specimen?"

The easiest way to think about it is this: a specimen shows how you actually use the mark in commerce in connection with your goods and services. It's real-life evidence of how the public encounters your mark in the marketplace. And the specimen you submit must be acceptable to the USPTO.

We'll look at some examples of acceptable specimens in a minute, but in order to know what to submit, you must first know whether you are a goods provider or a services provider.

You are a goods provider if customers purchase physical products from you that bear your trademark. Like shoes or laptops or candy.

You are a services provider if customers pay you to perform an activity for them. Like landscaping or accounting or dry cleaning.

See the difference? Goods are things that bear your trademark. Services are activities that you perform for others.

For more information about goods and services, be sure to watch the "TMIN: Goods and Services" news broadcast, available on USPTO.gov/TMvideos.

Remember, accurately identifying your goods and services is important because it determines what type of specimen you need to provide. The type of specimen you must submit is different if you have goods than it is if you have services.

Let's take a look at which specimens are acceptable for goods and which are acceptable for services.

If you apply for goods, you may submit a photograph of the mark on the goods themselves, or on a label or hangtag that is attached to the goods. Packaging that shows the mark is also acceptable.

By way of illustration, let's say your goods are "t-shirts." You could submit a digital photograph of the mark appearing on a hangtag. You could also submit a digital photograph showing a close up of the mark appearing on the t-shirt label. You could even submit a photograph of the mark appearing in the left breast pocket area of the t-shirt.

Be aware, however, that not all uses of marks on goods are acceptable. When a mark is used on goods, the mark must appear where and how consumers expect to see a trademark, and not merely as a decorative or ornamental design.

Examples of ornamental designs on t-shirts include situations where the mark appears in a large size across the front of the shirt, where it wraps around the shirt, and where it appears as a repeated pattern on the shirt. These types of designs are generally unacceptable, as they do not show good trademark use. Consequently, your application will be refused.

For more information about ornamentation and how to overcome an ornamental refusal, be sure to visit the "Ornamental Refusal" webpage and watch the "TMIN: Ornamental" news broadcast, available on USPTO.gov/TMvideos.

Also remember that advertising brochures, business cards, invoices, and other internal and marketing materials are not acceptable specimens for goods. You must show use of the mark on the goods themselves or on the labeling or packaging for the goods.

For services, on the other hand, 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, if your services are "Custom imprinting of t-shirts," you could submit a screenshot of your website that shows the mark and references those printing services. You could also submit photographs or scanned copies of your marketing materials that show the mark and reference the printing services. 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.

Remember, though, that the specimens for goods and the specimens for services are not the same. Goods specimens show the mark on the goods, the labeling, or the packaging; services specimens show the mark in the advertising or providing of the services.

Also remember, it is not enough to show how you might use a specimen in the marketplace. You must submit a photograph, screenshot, or similar representation of the actual thing. Mock-ups and digitally altered specimens are not acceptable.

And, as before, remember that 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 more information about drawings, be sure to watch the "TMIN: Drawing Issues" news broadcast, available on USPTO.gov/TMvideos.

Feel free to replay this broadcast and click on any of the links within the form for more information. And keep an eye out for more of these broadcasts throughout the website.

I'm Mark Trademan, Trademark Information Network.

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