Specimens that work

A specimen is a real example of how your mark appears in the marketplace. You file one for each class when you claim use, either in a §1(a) application or later in a statement of use. You file them again with the maintenance declarations that keep a registration alive. The rule is 37 C.F.R. §2.56: a specimen must show "the mark as actually used in commerce." The examination manual covers specimens in TMEP §904 (goods) and §1301.04 (services).

For goods

The mark must appear on the goods or in direct connection with selling them. Acceptable examples (§2.56(b)(1); TMEP §904.03):

• labels, tags or packaging bearing the mark;
• a photograph of the product showing the mark on it;
• a display at the point of sale, such as a shelf sign next to the goods;
• a web page or app screen that shows the mark next to the goods and a way to buy them, such as a price and a "buy" button. Web specimens must give the page's URL and the date you accessed or printed it (TMEP §904.03(i)).

Usually not acceptable for goods: advertising brochures without ordering information, invoices, press releases, business cards and pages that only describe the goods.

For services

The mark must be shown in the sale, advertising or rendering of the services, with a direct association between the mark and the services (§2.56(b)(2)). Acceptable examples include a website describing the services under the mark, advertisements, brochures, signage at the place the service is rendered, and menus for a restaurant. A page that shows the mark but never says what service you offer will be refused.

What the USPTO refuses

• Mockups. "[A]n artist's rendering, a printer's proof, a computer illustration, digital image, or similar mockup of the mark is not a proper specimen" (§2.56(c)).
• Digitally created or altered images. A product photo with the mark added by software shows no real use. Examining attorneys are told to look for signs of alteration. They may search to check that the pictured product exists, and may require more information about your use under 37 C.F.R. §2.61(b) (TMEP §904.04(a)).
• The wrong mark or the wrong goods. The specimen must show the mark as it appears in your drawing and must match the goods or services in that class.

AI-made specimens

An image produced by an AI tool is a digital creation, not a record of a sale. The USPTO's guidance on AI says "[p]articular care should be taken to avoid submitting any AI-generated specimens" that do not show actual use in commerce. It also warns against "any other evidence created by AI that does not actually exist in the marketplace" (89 Fed. Reg. 25609, 25616 (Apr. 11, 2024)). The same guidance says that relying on an AI tool's accuracy is not the "reasonable inquiry" that signing a USPTO filing requires (at 25614). A specimen is covered by the signed declaration. A false one can lead to sanctions and, if a registration was obtained fraudulently, to its cancellation (15 U.S.C. §1064(3)).

You may use any tool you like to design a label or a website. What you file must be a photograph or capture of that label or site as it actually exists and is used to sell your goods or services.

The USPTO also warns about "specimen farm" websites that exist only to generate screenshots for filings (USPTO, caution and misleading notices). Registrations supported by doubtful specimens are a target of the post-registration audit program. It can direct an audit where a specimen "appears digitally altered" (USPTO, post registration audit program).

If your specimen is refused

You can submit a substitute specimen. It must be supported by a declaration that it was in use in commerce by the right date: by the application filing date for a §1(a) application, or before the statement-of-use deadline for a §1(b) application (37 C.F.R. §2.59). If you were not actually using the mark by the filing date, a §1(a) application can often be amended to the intent-to-use basis instead (§1(b)). That is better than filing something that does not show real use.

A short checklist

1. Is the mark on the product, its packaging or tag, or at the point of sale? For services, is it shown with words that name the service?
2. Does the mark on the specimen match the drawing?
3. Does each class have its own specimen for goods actually in that class?
4. For web pages: are the URL, the access date and a way to buy visible?
5. Is the image a real photograph or capture, unaltered?

When an attorney earns their fee

Most owners can supply a good specimen themselves. An attorney earns the fee when a specimen has been refused and the response requires choosing between a substitute, a change of basis or an argument. The same is true when the goods are sold in unusual ways, such as software, downloadable content or business-to-business sales without a public website, and in any audit.

This guide is general information, not legal advice.