TMEP 1301.04(a): Whether the Specimen Shows the Mark as Actually Used by the Applicant in Commerce in the Sale or Advertising of the Services
October 2017 Edition of the TMEP
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1301.04(a) Whether the Specimen Shows the Mark as Actually Used by the Applicant in Commerce in the Sale or Advertising of the Services
The specimen must show the mark as actually used by the applicant in selling or advertising the services. 37 C.F.R. §2.56(b)(2). Acceptable specimens may include newspaper and magazine advertisements, brochures, billboards, handbills, direct-mail leaflets, menus (for restaurants), press releases that are publicly available (e.g., on the applicant’s website), and the like. However, printer’s proofs or mock-ups of advertisements, press releases sent exclusively to news media, or printed articles resulting from such releases are not acceptable because they do not demonstrate the required use of the mark by the applicant. See TMEP §1301.04(f). Business documents such as letterhead and invoices may be acceptable service-mark specimens if they show the mark and refer to the relevant services. In some instances, a specimen or the specimen description may indicate that the specimen is not yet in use in commerce by inclusion of wording such as "internal only," "printer’s proof," "website coming soon," or "under construction."