TMEP 904.02(b): Paper-Filed Specimens

October 2017 Edition of the TMEP

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904.02(b)    Paper-Filed Specimens

In a paper-filed application, allegation of use, affidavit of use under §8 or §71 of the Trademark Act, or response to Office action, the specimen(s) must be flat and no larger than 8½ inches (21.6 cm.) wide by 11.69 inches (29.7 cm.) long. 37 C.F.R. §2.56(d)(1).  The USPTO may create a photocopy or facsimile for the official record and destroy the original.

When the applicant cannot supply an actual specimen meeting these size requirements due to the nature or manner of use of the mark, the application, allegation of use, affidavit of use, or response must include a facsimile, such as a photograph, photocopy, or other acceptable reproduction, that is a suitable size and clearly shows how the mark is used in commerce.

Facsimiles or photographs of actual specimens are preferred. Facsimiles should show the whole article to which the mark is applied, or enough of the article so that the nature of the article can be identified.  The mark and all other pertinent written matter on the article should be clear and legible.  For example, product photographs appearing on folders or brochures that show the trademark on the applicant's goods are acceptable facsimiles.  It is permissible to show the complete article in one photograph and the written matter in another, so that the written matter will be legible, or to show different views of an article either in a single photograph or in separate photographs.

A photocopy or reproduction of the drawing is not an acceptable specimen or facsimile. 37 C.F.R. §2.56(c).

If color is a feature of the mark, the applicant should submit facsimiles made by color photography, or by any process that reproduces in color. See TMEP §904.02(c)(ii).

If an applicant submits a specimen that exceeds the size requirements (a "bulky specimen"), the USPTO will create a facsimile of the specimen that meets the size requirements of the rule and destroy the original specimen. 37 C.F.R. §2.56(d)(2).  If the copy of the specimen created by the USPTO does not adequately depict the mark, the examining attorney will require a substitute specimen that meets the size requirements of the rule and an affidavit or declaration verifying the use of the substitute specimen.  See TMEP §904.05 regarding affidavits supporting substitute specimens.

If necessary, the examining attorney may require one actual specimen for examination purposes, under 37 C.F.R. §§2.56(a) and 2.61(b).