T.M.E.P. § 904
This document contains one section of the Trademark Manual of Examining Procedure (the "TMEP"), Fourth Edition (April 2005). This page was last updated in June 2007. You may return to one either the section index, or to the key word index. If you wish to search the TMEP, simply use the search box that appears on the bottom of every page of BitLaw--be sure to restrict your search to the TMEP in the pop-up list.
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Specimens provide part of the basis for examination because they show the manner in which the mark is seen by the public. Specimens also provide supporting evidence of facts recited in the application.
An application for registration under §1(a) of the Trademark Act must include one specimen showing use of the mark as used on or in connection with the goods, or in the sale or advertising of the services in commerce. 15 U.S.C. 1051(a)(1); 37 C.F.R. 2.56(a). If an application under §1(a) is filed without a specimen, the examining attorney will require that the applicant submit one specimen for each class, with an affidavit or declaration under 37 C.F.R. 2.20 stating that the specimen was in use in commerce on the filing date of the application.
In an application for registration under §1(b) of the Trademark Act, no specimen is required at the time the application is filed. However, before registration the applicant must file an amendment to allege use or statement of use of the mark in commerce that includes one specimen showing use of the mark in commerce on or in connection with the goods, or in the sale or advertising of the services. 37 C.F.R. §§2.56(a), 2.76(b)(2), and 2.88(b)(2).
If the nature of the specimen is unclear, the applicant must explain what it is and how it is used.
A specimen showing use of the mark is not required in an application based solely on §44 or §66(a) of the Trademark Act, 15 U.S.C. 1126 or §1141f(a). While a §44 or §66(a) applicant must assert a bona fide intent to use the mark in commerce, the applicant is not required to assert actual use in commerce prior to registration. Crocker National Bank v. Canadian Imperial Bank of Commerce, 223 USPQ 909 (TTAB 1984); TMEP §§1009 and 1904.01(d).See TMEP §1202.15 regarding sound marks.