Typically, advertising materials are only acceptable specimens if your application is for a mark used in connection with services; it is not typically acceptable if your mark is used on goods. To overcome a refusal of specimens consisting of print advertising that you characterized as a display for goods, you will need to submit photos or a verified statement that shows how the print advertising material was used in a display of the goods at their point-of-sale. This means that the consumer had the opportunity to purchase the goods at the place and time that the printed advertising material was exhibited.
For example, a company that makes running shoes may use its mark for a particular pair of running shoes shown on a printed brochure. The company may distribute the printed brochure at gyms, races and sporting goods stores, but this does not make it qualify as a point-of-sale display. The company must submit actual evidence that shows a consumer can buy the shoes where and when the printed brochure is distributed. For instance, if the company sets up a booth at a race or has a promotional event at a gym to sell their shoes, the company may submit a photograph showing how the printed brochure is used in a display of their shoes at the booth. Submitting a verified statement that describes the company using the printed brochure this way would also be acceptable.
For more information regarding this response option, see TMEP §904.03(g).
TEAS instructions for submitting evidence that the specimen was used with goods at their point-of-sale:
To respond to a nonfinal Office action, use the "Response to Office Action" (ROA) online form. To respond to a final Office action, use the "Request for Reconsideration after Final Action" online form. The instructions provided in both forms are the same. If you need technical assistance with TEAS, contact TEAS@uspto.gov.
NOTE: If you submit a verified statement as evidence, the TEAS online form requires two signatures - one in the “Declaration Signature” section and one in the “Response Signature” section. The same individual may not always have the authority to sign in both places.
Once you have opened the appropriate TEAS form:
(1) Submit a photograph and/or verified statement:
To submit a photograph:
(1) Answer "Yes" to form wizard question #1.
(2) In the "Evidence" section, use the "Click here to Attach Evidence(s)" button to upload the JPG/PDF image file. The size cannot exceed 5 megabytes per attachment.
(3) Enter the description of the evidence.
To submit a verified statement:
(1) Answer "Yes" to form wizard questions #3 and #10.
(2) In the "Additional Statement(s)" section, check the box for "miscellaneous statement."
(3) In the free form text field for the "miscellaneous statement," write a statement explaining how the specimen is actually used at the point-of-sale and how the mark is specifically associated with the goods.
(4) Click the "Continue" button at the bottom of the form.
(5) In the "Signature" section, personally sign both the Declaration Signature and Response Signature.
(2) Click the “Submit” Button.