Specimen guide for Software

What is a trademark specimen?

When you apply for/renew a US trademark, you must prove to the USPTO that your trademark is "used in commerce", i.e., that your goods/services are available for purchase or ordering to US customers. In practice, you will prove the use in commerce by submitting a so-called specimen, which is usually a photograph or a screenshot of your trademark used together with the goods or services you applied for (e.g., depicted on the product packaging, on your storefront, etc.).

What is considered a sufficient specimen will depend on multiple factors, including whether you offer goods (Classes 1-34) or services (Classes 35-45).

In this guide, we will look specifically at trademark specimens for software - the best format, requirements, and examples from the USPTO.

What can I submit as a specimen for software?

Your specimen will be a screenshot or multiple screenshots showing how the mark labels the software you are offering.

The most suitable specimen for your software mark will depend on whether you offer a product (software recorded on physical media, downloadable software, downloadable mobile apps, NFTs, etc.) or a service (software development services, software as a service, etc.) Software products fall under Class 9, whereas software services belong under Class 42.

It's also worth noting that some businesses might fall under both classes. If you have a SaaS business that runs in a browser but also includes a downloadable application, you might want to consider a trademark in both classes.

You can find more on the trademark classes recommended for software in our Class Assist.

For Class 9 software, the most suitable specimens include:

• A screenshot of a software splash page, app store listing, or a similar page. The website must function as a point of sale/point of download; it can't be merely promotional. The screenshot has to include a button labelled "Download", "Install", "Get", or similar.

For Class 42 software, the most suitable specimens include:

• A screenshot of the home page, about us page, or pricing page. For software as a service and similar Class 42 items, the screenshot has to include a "Login" type of button. "Contact us" and similar buttons are not sufficient.

What requirements does my specimen for software have to meet?

Besides the format mentioned above, your specimen must meet a few general requirements to be accepted. For software, these requirements include the following:

Legibility

The mark must be clearly visible, meaning it must be legible, not cropped off, etc.

Correct mark version

The mark shown on the specimen has to match the mark in the original trademark application exactly. For example, if you applied for a mark consisting of a graphical element and the brand name, the specimen can't display just the graphical element.

Realness

The specimen must be a real screenshot, not a digitally altered or created image.

URL and date

You have to provide the URL and the date the specimen was taken. You can either fill this information in the form or capture it in the screenshot itself.

Currency

If your screenshots include pricing, they have to be shown in USD to prove the product/service is available to US customers.

Showing connection

The specimen has to show a clear connection between the mark and the applied-for goods/services. This means the screenshot must include a picture or sufficient textual description of the product/clear reference to the service and then show the mark associated with this product/service. For SaaS specifically, the mark in the specimen has to identify the software and not its providers.

This is why we recommend splash pages/third-party store pages for Class 9 software and homepages and about-us pages for Class 42. These types of pages often naturally include sufficient depiction/description, the mark, and a correct type of button - the basic elements of a suitable software specimen.

Regarding pricing pages for Class 42, they can work if the pricing sufficiently describes the offering. For Saas, showing that the business model is based on subscriptions and not on one-time purchases further proves that the mark labels a service, not a product.

Generally, to meet this criterion, a good rule of thumb is to ask: "Is it clear from the specimen that the trademark belongs to the goods/services I said I was offering in my trademark application?"