What is a Specimen of Use?
A specimen of use shows the manner in which a trademark is seen by the public. A specimen is a real-life example of how the trademark is used in commerce on or in connection with the goods and/or in connection with the offering or promotion of the services.
When is a Specimen of Use Required?
According to the USPTO,“if your application is based on “use in commerce” or “intent to use,” you are required to submit a specimen. If your application is based on a foreign application or registration, or you filed under the Madrid Protocol, you are not required to submit a specimen.” The following table outlines the filing basis and requirement for these applications.
| Filing Basis | Requirement |
| §1(a) of the Trademark Act [based on use] | Application must include one specimen for each class at the time of filing. |
| §1(b) of the Trademark Act [based on intent-to-use] | Application is filed without a specimen. Prior to registration, an Amendment to Allege Use or Statement of Use must be filed and must include one specimen for each class. |
| §44(d) or §44(e) of the Trademark Act [based on foreign application/registration] | No specimen requirement. |
| §66(d) of the Trademark Act [Madrid Protocol] | No specimen requirement. |
Registrations
Regardless of application filing basis, a specimen must be filed with the Declaration of Use required between the fifth and sixth year after registration, and with the Declaration of Use and Renewal Application required every ten years after registration.
Generally, one specimen for one item identified in each class of goods/services is required.
What Constitutes an Acceptable Specimen?
When you submit your example specimens, it is important that your specimen shows your trademark and how it will be used. Following are examples of acceptable and unacceptable specimens for goods and services.
Goods
(International Classes 1-34)
| Acceptable | Unacceptable |
| · A photograph of the mark stamped on the actual product or its packaging · A copy of a real product label · Screenshot from online store showing mark next to the product as offered for sale, with sales price and/or ordering information · Screenshot from website or app store showing mark next to “download” or similar link · Copy of a catalog page showing mark next to the product, with sales price and/or ordering information · Instruction manual | · Invoices · Bill of Lading · Technical Sheet Datasheet · Mock-ups of Labels or Hangtags · Advertisement · Press release |
Services
(International Classes 35-45)
| Acceptable | Unacceptable |
| · Any advertisement that shows the mark and references the identified services · Website printouts, Newspaper or Magazine Ads, Brochures · Billboards · Menus (for restaurants) | · Printer’s proof · Mock-ups of advertisement · Anything that says “coming soon” or “internal use only” |
All Panitch Schwarze attorneys are qualified U.S. attorneys, who are active members in good standing of the bar of the highest court in the U.S. state in which they primarily practice. Contact us for further information at trademark@panitchlaw.com.