How to Submit A Different Specimen (a Verified "Substitute" Specimen)

You may submit a different specimen (a verified "substitute" specimen) that was in use in commerce at least as early as the filing date of the application (or prior to the filing of an amendment to allege use; or prior to the expiration of the deadline for filing a statement of use) and that shows proper non-ornamental use in commerce for the same mark for the refused goods identified in the application, amendment to allege use, or statement of use.

NOTE: You may have to amend the dates of use if the substitute specimen was in use in commerce on different dates than those in the application or amendment to allege use/statement of use.

Examples of the type of specimens normally acceptable for goods are tags, labels, instruction manuals, containers, photographs that show the mark on the actual goods or packaging, or displays associated with the actual goods at their point of sale. Webpages are acceptable specimens for goods when they include a picture or textual description of the goods closely associated with the mark and sufficient information to order those goods (e.g., a visible weblink to order the goods, an offer to accept orders via phone or e-mail).

For more information on substitute specimens, see 37 C.F.R. §§2.59(a), 2.71(c); TMEP §§904.05,§904.03 et seq.

TEAS ROA form instructions: You should respond using the Trademark Electronic Application System (TEAS) "Response to Office action" (ROA) form (available at http://teasroa.uspto.gov/roa/), which automatically provides any required statement and supporting declaration language referenced in the Office action.

Answer "Yes" to form wizard question #2. In the "Classification and Listing of Goods/Services" section, scroll down to "Specimen File" and use the "Click here to Attach Specimen(s)" button to upload the JPG/PDF image file of the specimen. The size cannot exceed 5 megabytes per attachment. Enter the description of the specimen and check the box related to this statement: "The substitute (or new, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application" [for an application based on Section 1(a), Use in Commerce] OR "The substitute (or new, if appropriate) specimen(s) was/were in use in commerce prior either to the filing of the Amendment to Allege Use or expiration of the filing deadline for filing a Statement of Use" [for an application based on Section 1(b) Intent-to-Use]. For technical assistance, contact TEAS@uspto.gov.