When a person or business applies with the US Patent & Trademark Office (“USPTO”) to register a trademark, one requirement is that the applicant supply “specimens of use.” Use of a trademark in commerce is a legal requirement for a trademark to be registered. Use is not only required for registration, but also for a trademark to exist legally and be protected from infringement. Further, the use-in-commerce requirement is ongoing. Trademark registrations must be renewed about every 10 years. Each renewal application must include specimens of use during the relevant time period.

A specimen of use is an example showing the trademark as it is used. The specimen must be of actual use, not just a hypothetical use or a proposed use or photoshopped or otherwise altered. Providing acceptable specimens of use to the USPTO is important. Otherwise, the application for registration (or renewal) will be denied.

For trademarks used with goods and products, a proper and acceptable specimen of use might be a photograph of the trademark affixed to the actual product (like the trademark affixed to the bottom of a coffee mug). When providing a specimen to the USPTO, a photograph or a digital scan is required, not the physical object. Other examples of acceptable specimens of use with goods and products include :

• A photo of product container or packaging showing the trademark
• A photo or scan of a tag or label attached to the physical product showing the trademark
• A screenshot of a webpage displaying the trademark where the relevant goods can be purchased or ordered
• A photo of a sales displays where the goods are sold showing the trademark along with the product
• And more

For trademarks used with services, the rules are slightly different — though similar — because services do not generally involve a physical product. As such, acceptable specimens can involve examples of the trademark being used on advertising materials, webpages, packaging, correspondence, signage on office locations or vehicles and the like. These are not generally acceptable specimens of use for trademarks used with goods and products.

Note that ALL specimens of use must show the trademark being used with the products/services with which the trademark is registered. Generally, trademarks are registered for use with a given class or category of goods or services. A trademark can be registered with several such categories. For example, a musical group can register its trademarks for use with live performances, with recordings and for use on clothing like t-shirts and hats. Specimens of use must be provided for each class or category.

For a specimen to be acceptable, a few other important rules apply such as:

• The specimen provided must be clear — no fuzzy photos or scans
• The specimen must show the entire trademark
• The specimen must show the relevant context — that is, must show the whole trademark as used for the whole package — no cryptic or vague close-ups
• The trademark shown must be the exact one depicted on application or registration — not a variant or a trademark that has been modified or changed — even slightly
• The specimen must show use by the applicant — not use by someone else in a media article or online review
• The specimen must show the trademark used in a way that directly associates the mark with the goods or services — not just a generalized use of the trademark
• The specimen must show the trademark used for the actual class of goods or services with which the trademark is associated, not a related class of goods or services — for example, a trademark for use ON t-shirts must be shown ON t-shirts, not for a t-shirt printing service
• And more

Contact Revision Legal

If you have questions about trademarks or service marks, need help creating and registering a trademark/service mark or if you are facing trademark/service mark litigation, contact the proven trademark litigators at Revision Legal at 231-714-0100.

The Legal Standard for Acceptable Specimens

The use-in-commerce requirement is central to U.S. trademark law. Unlike trademark systems in many foreign countries, U.S. trademark rights arise from actual use in commerce—not merely from registration. A specimen of use is the USPTO’s mechanism for verifying that this requirement is met. Providing a proper specimen is not optional or procedural; it is a substantive legal requirement. An application or renewal that lacks an acceptable specimen will be refused.

The USPTO examines specimens under the standard articulated in TMEP § 904 and its subsections: the specimen must show the applied-for mark as it is actually used in commerce in connection with the specific goods or services identified in the application. The specimen must reflect current use—not proposed use, mock-ups, or photoshopped images. Examiners are trained to identify altered images, and submitting a fraudulent specimen can result not only in refusal but in a fraud-based challenge to the entire registration.

Common Specimen Failures and How to Avoid Them

The most common reasons specimens are rejected include:

• Decorative use — If the mark appears on the goods themselves purely as decoration (e.g., a phrase on a T-shirt), it may not function as a trademark. Examiners look for marks placed in a manner that consumers perceive as a source indicator.
• No nexus to the goods/services — A website screenshot that shows the mark but does not display or offer the listed goods for purchase is generally insufficient for a goods-based application.
• The wrong class — A specimen must correspond to the specific International Class and description of goods or services in the application. A specimen showing use of the mark on Class 25 clothing cannot support registration in Class 28 for toys.
• Stale specimens — A Section 8 declaration requires specimens showing use during the period immediately before the filing. Using old specimens from the original application can result in cancellation.
• Digitally altered images — The USPTO specifically warns against specimens that appear to have been altered. Examiners can identify common editing artifacts, and fraudulent specimens expose registrations to cancellation.

Service Mark Specimens

Service mark specimens present distinct considerations because services do not involve a physical product. Acceptable specimens for service marks must show the mark as used in rendering the services or in the advertising of the services. Specimens showing the mark in association with the offering of the services—not merely in general advertising—are required. Examples of acceptable service mark specimens include:

• Website screenshots showing the mark in proximity to a description of the services offered.
• Brochures, menus, or advertisements that specifically promote the services.
• Signage at a location where the services are rendered.
• Screenshots of a service-delivery platform showing the mark and the service being performed.

Specimens for Renewal and Continued Use Declarations

Section 8 and Section 71 declarations (the latter for Madrid Protocol extensions) require specimens demonstrating use during the relevant period—specifically, within the year before the filing of the declaration. The renewal specimen must reflect current commercial reality. If your use of the mark has evolved—new packaging, new website design, updated logo—the renewal specimen should reflect the current use, and any significant changes to the mark may require examination for whether the registered mark and the current use are legally equivalent.

Contact Revision Legal

If you have questions about the issues discussed in this article, contact the experienced attorneys at Revision Legal. We handle intellectual property, internet law, and business law matters for clients across the country. Contact us online or call us at 1-855-RL-LEGAL.