What is Evidence of Trademark Use?
The requirement of trademark use is a common feature of the trademark registration process in the United States. When filing a trademark application in the US, business owners must specify the legal reason for why they are allowed to federally register a trademark. This is known as a filing basis. There are multiple filing bases and business owners must satisfy all the legal requirements for the filing basis that they choose. The most common are use in commerce and intent to use.
The trademark could be regarded as 'being used in commerce' as long as it is genuinely being used with particular goods and/or services defined on the trademark application. Use in commerce is demonstrated by means of a so-called specimen which is a real-world example of how a particular trademark is being used with goods or services. Alternatively, when the trademark is not yet being used with goods or services in commerce, the trademark application may be filed with an 'intent to use'. However, the applicant will be required by the USPTO to show that the mark is being used in commerce later on in the proceedings. The period for providing a suitable form of a specimen of use ends 6 months after the registration period but can also be prolonged.
Examples of Evidence of Trademark Use
Evidence of trademark use for goods:
The goods themselves
For example, you could submit a photo showing your trademark on the bottom of a coffee mug or on the cover of a software instruction manual.
Labels and tags for the goods
For example, you could submit a photo showing your trademark on a label sewn on the neckband of a t-shirt, a photo of the goods showing your trademark on a label. A label or tag that is not shown physically attached to the goods may be accepted if, on its face, it clearly shows the mark in actual use in commerce.
Packaging for the goods
For example, you could submit a photo showing your trademark on a laundry detergent box.
Sales displays where the goods are sold
For example, you could submit a photo of a counter display showing your trademark along with hair-care products in a beauty salon that uses those products.
Webpages selling the goods
For example, you could submit a screenshot or printout of a webpage showing a necklace for sale, the trademark on or in close proximity to the necklace, the price, and a shopping-cart button. You must include the URL and date you accessed or printed the webpage in your submission. You can include it in your screenshot or printout.
Software as goods.
For example, you could submit a screenshot of a software launch screen with the trademark in an introductory message box, or a screenshot of a webpage with enough information to download the software and the trademark appearing in the title bar.
Evidence of trademark use for services:
Online advertising or printed matter showing a direct link association between your trademark and the services
For example, you could submit a photo or screenshot of a newspaper or online advertisement for financial investment services.
Television and radio commercials for the services
For example, you could submit an MP3 file of a television commercial for laboratory testing in the field of genetics and ancestry.
Marketing material showing a direct association between your trademark and the services
For example, you could submit a scanned copy of brochures and leaflets advertising or marketing various hospital services.
Signage where the services are rendered
For example, you could submit a photo of business signs on the front of a grocery store.
Material used in the providing/rendering of the services.
For example, you could submit:
A photo or scanned copy of a menu for restaurant services.
A photo of a band performing on stage with the band's name displayed during the performance (e.g., the band name on the band's drum) for live musical entertainment services).
A screenshot of the title and launch screens for ongoing television programs and video game entertainment services.
Invoices showing a direct association between your trademark and the services
For example, if your services are printing and copying services, you could submit a photo or scanned copy of an invoice showing your trademark that includes the wording COPY SHOP) at the top of the invoice.
Business cards and letterhead showing a direct association between your trademark and the services
For example, you could submit a photo or scanned copy of business cards and letterhead that indicate you provide publishing services.
Examples of unacceptable Evidence of Trademark Use
Here are some common reasons why specimens are refused. The examples below don’t meet the USPTO's requirements for specimens.
Your specimen does not show trademark use with the goods or services in your application. For example, your application identifies t-shirts as your goods, but the specimen shows your trademark advertising your custom t-shirt printing services.
Your specimen does not show your own use of the trademark. For example, your specimen is a press release sent exclusively to news media or your specimen is a printed article resulting from such a release. However, publicly available press releases, such as on your website, are acceptable to show use for services, but not goods.
Your specimen is not in actual use in commerce. For example, your specimen:
- Is a printer’s proofIs a digitally created or altered image or mock-upIs material used only to conduct your daily business of selling goods (e.g., packing slips, business stationery, order forms, waybills, and bills of lading)Is only a drawing or depiction of your trademarkIs a webpage that doesn't include the URL and date accessed/printedShows that your goods have not yet been sold or transported (e.g., pre-sale orders for goods not yet available)
Your specimen is not an appropriate type for your goods or services. For example, your specimen is only advertising for goods, such as:
- A webpage with insufficient ordering or purchasing informationA webpage for downloadable software with no means to download or purchase the software.
