T.M.E.P. § 904.02
Physical Form of Specimens
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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904.02 Physical Form of Specimens
904.02(a) Electronically Filed Specimens
In an electronically filed application or allegation of use, the applicant must submit a digitized image of the specimen in .jpg format. 37 C.F.R. 2.56(d)(4).
Sometimes there is no visible specimen in the record due to a technical problem. In this situation, the examining attorney should ask the applicant to submit by mail or fax: (1) the specimen (or a facsimile) that was attached to the original TEAS submission; and (2) a statement by the person who transmitted the original TEAS submission with the specimen that the specimen being submitted by mail or fax is a true copy of the specimen originally filed through TEAS. This statement does not have to be verified. Alternatively, the owner may submit a new specimen, together with an affidavit or declaration of use of the substitute specimen. See TMEP §904.09 regarding the requirements for an affidavit or declaration supporting use of substitute specimens.
This also applies to specimens filed with affidavits of use under 15 U.S.C. 1058 of the Trademark Act.
If the nature of an electronically filed specimen is unclear, the applicant should explain what it is and how it is used.
In an application for registration of a sound mark that comprises music or words set to music, the applicant may submit the musical score as a specimen, in .wav format. Since all TEAS attachments must be in .jpg format, a .wav file cannot be sent as an attachment to a TEAS filing. Therefore, the Office has developed a special procedure for handling .wav files. The .wav file must be sent after the application is filed, as an attachment to an e-mail message directed to TEAS@uspto.gov, with clear instructions that the .wav file should be associated with "the application filed under Serial No.
904.02(b) Paper Specimens
A specimen of use must be flat and no larger than 81/2 inches (21.6 cm.) wide by 11.69 inches (29.7 cm.) long. 37 C.F.R. 2.56(d)(1).
When the applicant cannot supply an actual specimen meeting these size requirements due to the nature or manner of use of the mark, the applicant should file a photograph or other acceptable reproduction that is a suitable size and clearly shows how the mark is used. See TMEP §904.08 regarding facsimiles as specimens.
Specimens of value should not be filed.
Once filed, specimens remain part of the record and will not be returned to the applicant. 37 C.F.R. 2.25.
904.02(c) Specimens for Marks Comprising Color
If color is a feature of the mark, the specimen must show use of the color. If the applicant submits a specimen that is not in color or not in the appropriate color, the examining attorney will require the applicant to file a substitute specimen that shows use of the appropriate color(s). See TMEP §904.09 regarding substitute specimens.
See also TMEP §1202.05(f) regarding specimens showing use of marks that consist solely of color.
904.02(d) Marks Used on PublicationsAn application for registration of a mark for publications is treated the same as any other application with respect to specimen requirements. The Office does not require a complete copy of the publication or a title page in every case. However, the examining attorney may require a copy of the publication under 37 C.F.R. 2.61(b) if he or she believes it is necessary for the proper examination. For example, a copy of the publication might be necessary to determine whether a mark is merely descriptive of the goods.