At many times throughout the life of your trademark application or registration in the United States, the United States Patent and Trademark Office (USPTO) will require proof that you are actually using your mark in United States commerce. That proof is called a “specimen of use”.

A strong specimen shows the USPTO exactly how customers encounter your brand in the real world. A weak or incorrect specimen can delay your trademark application, or result in rejection.

Whether you’re filing your first application or correcting an Office Action, understanding what and what doesn’t will help protect your brand from the start.

What Is a Trademark Specimen?

A trademark specimen is an example of how your trademark is used on your goods or in connection with your services. It will usually end up being a photograph. An acceptable specimen will show your trademark exactly as it appears in your application, as you are using it in US commerce. For goods, it would be your brand name on the product itself (like a hang tag on a shirt you are selling), or your brand as a label of some kind at a point of sale (like your store name showing above your register). For services, they are looking for your brand name in an advertisement for the services you offer.

Why DOES the USPTO Require a Specimen?

At the very root of trademark rights in the U.S. is use in commerce. In fact, a user of a brand name does get rights to that trademark through use in commerce alone. Registration in the USPTO of your trademark is a memorialization of that right, and move to secure those rights against others. For more on that, see our article 18 Reasons to Register Your Trademark. In fact, for domestic applications, if you cannot provide an acceptable specimen, the USPTO will not register your trademark.

The USPTO uses specimens to confirm that the trademark is actually in use and otherwise meets the requirements for a trademark, such as being distinctive enough to even qualify as a trademark. For more on lack of distinctiveness, see our article Is Your Trademark Strong Enough?

Types of Trademark Specimens

The USPTO has different requirements depending on whether your application covers goods or services, so we have compiled a list of what they would likely accept within each category. The specimen must clearly associate your trademark with the service being performed, not just as a decorative brand name.

ACCEPTABLE SPECIMENS FOR GOOD

For goods, an acceptable Specimen of Use is typically a photograph or digital image showing the trademark as it appears in commerce. Examples include:

• A label, tag, or decal affixed to the product.
• A label or tag hanging from the product.
• Product packaging, boxes, or shipping containers displaying the trademark.
• A point-of-sale display featuring the mark alongside the product.
• A packing slip or packaging materials that include the trademark.
• A catalog order sheet with an image of the product, the trademark, pricing, and purchasing instructions.
• A screenshot of a webpage displaying the product, the trademark, pricing, and a “cart” icon.
• A photograph of a frame from a movie or video that prominently displays the trademark.
• If the product is downloadable software, a screenshot showing the trademark alongside purchase instructions and a download link.
• A truck featuring the mark that ships the goods.
• An instruction manual with the trademark included in product packaging.

ACCEPTABLE SPECIMENS FOR SERVICES

For services, an acceptable Specimen of Use typically consists of advertising or marketing materials that clearly reference the services being offered. Examples include:

• Website pages or social media advertising the services.
• Print advertisements in magazines, newspapers, journals, or phone directories.
• Marketing brochures, direct mail ads, flyers, and posters.
• Business signage on storefronts or vehicles.
• Invoices or proposal letters bearing the trademark.
• Menus (for restaurant services).
• Business letterhead, stationery, or business cards.
• Trade show demonstration materials.
• Showroom displays.
• Billboard advertising.
• Radio and television advertisements.
• Branded promotional items such as T-shirts, hats, coffee mugs, calendars, pens, and buttons.

Trademark Specimen Dos and Don’ts

The USPTO is strict about what gets accepted as a specimen or not. Reviewing your specimen before submitting it can save you a lot of time and effort.

✓ Dos: What Makes a Strong Specimen

1. Use the mark exactly as filed. Even minor changes in spelling or punctuation will trigger the USPTO to reject your specimen.

2. Make the trademark visible and prominent. Placement should reflect real-world branding and show the product or service clearly.

✗ Don’ts: Common Mistakes to Avoid

1. Don’t submit a logo with ™ or ®. The trademark in your application and how you use it must match exactly.

2. Don’t use purely decorative or ornamental placements. This is a common mistake for apparel applications. For more on ornamental refusals, read our article about Common Trademark Mistakes Apparel Companies Make.

3. Don’t submit mockups, drafts, or digital renderings. The USPTO requires actual use, not intended use.

Examples of Rejected Trademark Specimens

After many years of working with clients to submit their specimens of use, or handling rejections that clients bring to us from other filers, we have noticed a few common mistakes.

• A t-shirt with the phrase across the front but no branding on labels
• A website homepage with a logo but no description of the services offered
• A screenshot of an online store with no price or “add to cart” function
• A invoice (remember, a specimen of use will be either an ad or at a point of sale, so its always going to be at the pre-purchase stage).

How Many Specimens Do You Need?

The USPTO typically requires one specimen per class of goods or services. So, for instance, if you file in three classes, you must submit three specimens.

When Is a Specimen Required?

There are many milestones where a specimen of use might be required and deadlines can also depend on your filing basis.

Use-Based Applications (Section 1(a))

If you file a trademark application under Section 1(a), you are asserting that the mark is already in use in U.S. commerce. In that case, a trademark specimen must be submitted with the initial application. The specimen must show the mark as it is currently used on the goods or in connection with the services listed. If the specimen does not meet USPTO requirements, the application may receive an Office Action requiring a corrected specimen or additional explanation. Sometimes an Applicant will choose to convert their application to an Intent-to-Use Application.

Intent-to-Use Applications (Section 1(b))

If you file under Section 1(b), you are stating that you have a bona fide intention to use the mark in U.S. commerce but have not begun use yet. So, in a Section 1(b) application, no specimen is required at filing. Instead, the USPTO issues a Notice of Allowance after the application clears examination and any opposition period. Within 6 months of the Notice of Allowance, the applicant is required to file a Statement of Use. If the mark is not yet in use, the applicant may request an Extension of Time in six-month increments. The USPTO allows up to five extensions for a maximum of three years from the Notice of Allowance to submit a specimen and complete registration. If a Statement of Use and acceptable specimen are not submitted within the allowed time, the application will abandon.

Maintenance and Renewals

After registration, trademark owners must submit specimens with certain maintenance filings, including the Section 8 Declaration of Continued Use which is due between the 5th and 6th year after registration and the Section 8 & 9 Renewal filings, which is due every 10 years. Each of these filings must include a specimen showing current, real-world use of the mark for the goods or services listed in the registration. Keep in mind that because these specimens of use are required so spread apart, trademark owners should periodically review how their marks appear on products, packaging, websites, and marketing materials to ensure ongoing compliance with USPTO specimen requirements. Sometimes minor changes can turn into major headaches when it comes time to file a maintenance and renewal.

Practice tip for international applicants: If your application was filed using a non-US priority under Section 44, or through the Madrid Protocol under Section 66, you do not need to file a specimen of use until your first maintenance filing. This is a huge difference for domestic applications and non-US applications. For more on this, check our our article outlining what Non-US Companies Need to Know about US Trademark Registrations.

What If My Specimen Gets Refused?

Because the USPTO is so strict about the use requirement, specimen refusals are among the most common Office Actions. Responses can involve submitting a new, correct specimen, amend the filing basis (in some cases), or providing arguments explaining why your specimen is acceptable

A Good trademark Specimen Builds a Strong Trademark

A trademark specimen is more than a formality, it is a snapshot of your brand in the real world. A strong specimen makes your application easier to approve, avoids Office Actions, and protects your rights from day one. If you’re unsure whether your evidence qualifies, an initial review by a trademark attorney can save time, money, and prevent delays at the USPTO. If you need support, Stemer Law can help you develop a strategy tailored to your business goals.

Have questions about your U.S. trademarks? Stemer Law (Stemer, P.A.) is a Denver trademark law firm serving clients across the U.S. and abroad. With 1,000+ trademarks filed, we make brand protection simple, affordable, and effective. To speak with a trademark attorney contact us at hello@stemerlaw.com or (303) 928-1094