TMEP 1613.12(b): Specimens in Electronically Filed Affidavits or Declarations

This is the October 2015 Edition of the TMEP

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1613.12(b)    Specimens in Electronically Filed Affidavits or Declarations

If the holder files the §71 affidavit or declaration through TEAS, the holder should submit a digitized image in.jpg or.pdf format. See 37 C.F.R. §2.56(d)(4).

Sometimes, no visible specimen is in the record due to a technical problem during submission of the affidavit or declaration. In this situation, the Post Registration staff should first send an e-mail to the TEAS mailbox to ask whether the problem can be fixed by uploading the file again. If it cannot, the Post Registration staff must ask the holder to submit: (1) the specimen (or a facsimile of the specimen) that was attached to the original electronically filed affidavit or declaration; and (2) a statement by the person who transmitted the affidavit or declaration to the USPTO that the specimen being submitted is a true copy of the specimen submitted with the electronically filed affidavit or declaration. This statement does not have to be verified. Alternatively, the holder may submit a new specimen, together with an affidavit or declaration that the substitute specimen was in use in commerce on or in connection with the goods/services during the relevant period specified in §71 of the Act. No deficiency surcharge is required. See TMEP §1613.12(c) regarding the requirements for an affidavit or declaration supporting use of substitute specimens.

The USPTO prefers that the specimen, whether a true copy of the original or a substitute, be submitted electronically via the Trademark Electronic Application System (“TEAS”). In TEAS, the Response to Office Action form can be accessed by clicking on the link entitled “Response Forms” at http://www.uspto.gov.