Submitting Specimens To The USPTO

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What is a Specimen

A specimen is an example of how you will be using your mark in connection with the goods and services the mark identifies. A specimen is not merely a mock-up or a drawing of your mark, but an example of how your customers will come into contact with your mark. A specimen must be provided with your application up front or after your application is filed (depending on your filing basis). When you think of a specimen, think of what customers will generally see when they purchase your good or service. It is important to note that even if your name identifies an online product or service only, you still need to provide a specimen showing your mark as a customer would engage it in the marketplace. 

Specimens for Products vs. Services

Acceptable specimens differ depending on the type of goods associated with a particular mark. For example the specimen that you provide for consulting services would not be the same specimen provided for a provider of clothing and leather goods. Acceptable specimens for goods and products traditionally include packaging, labels, tags, marketing materials and instruction manuals. As a general rule, business cards and stationary are not acceptable specimens for goods. Acceptable specimens for services include brochures, flyers, advertisements, yellow page listings and websites. To use a business card as a specimen for a service, the card must contain both the service mark and list the services offered in association with the service mark.

Overcoming a Specimen Refusal by The USPTO

The USPTO will issue a refusal based on the submitted specimen when a specimen is not included with an application or if the specimen does not show how an applicant is using the goods or services in commerce (the marketplace). To overcome a specimen refusal, an applicant has 5 options:

  1. Amend the filing basis of the application to Section 1(b) Intent to Use
  2. Submit a verified specimen or verified substitute specimen
  3. Provide evidence that the specimen provided is being used with goods at a point of sale
  4. Submit an original unaltered copy of the original specimen provided
  5. Submit a proper verification of a specimen or substitute specimen. 

The option selected will largely depend on the nature of the refusal received, with options 3 - 5 being applicable in limited circumstances. It is recommended that you consult a trademark attorney to get your application back on track when you receive a specimen refusal. 

Hawkins Law Offices, LLC specializes in assisting registrants with their trademark filings and offers many flat fee solutions to get your mark registered. Give us a call today for a free consultation and flat fee proposal for your mark. 

Derek Hawkins

Hawkins Law Offices, LLC, 757 North Water Street, Suite 300, Milwaukee, WI 53202