What Is an Acceptable Specimen of Use?
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Most trademark applications at the United States Patent & Trademark Office (“USPTO”) must demonstrate appropriate use of that trademark before the USPTO will issue a registration for the mark. This is not a requirement in many jurisdictions, which do not require a claim or proof of use, and isn’t a requirement for certain foreign applicants filing in the United States with a filing basis derived from the Paris Convention (Section 44(e) filings) or the Madrid Protocol (Section 66 filings), although those applicants to have to declare an intent to use the mark in the US for all listed goods or services). The applicant has to provide the USPTO’s Examiner an example of use of the mark, either at the time of application, during initial examination (an “Amendment to Allege Use”), or after the USPTO has issued a Notice of Allowance (a “Statement of Use”). The requirements are the same for each.
For products, the applicant must usually provide an example of the mark used on the product or used on items that travel in trade with the product, e.g. on a label or on product packaging, or at the point of purchase (a page with a “buy” or “add to cart” button in an online store or in a catalog with ordering information). For less tangible goods like software, the applicant can provide a screenshot of the mark in use in an app (e.g. in a splash screen) or on a download page for the software. Use in advertising does not suffice for a specimen of use for products.
For services, the applicant can provide an example of advertising using the mark and describing the services. A website page is often the easiest example. More general uses of a mark that are not tied to specific services, like business cards or letterhead, generally do not suffice.
The specimen of use does not have to show all the goods and services covered by an application – one adequate example per international class is sufficient. However, the applicant is well-served by documenting use for all filed-for goods and services, since the applicant (or its counsel) has to file a signed declaration swearing that the mark is in use for all goods or services for which the use claim applies. If the use claim is defective – even if the specimens of use were acceptable – the registration may be vulnerable to partial or total cancellation.
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