TMEP 904.03(m): Specimens for Scent and Flavor Marks

October 2017 Edition of the TMEP

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904.03(m)    Specimens for Scent and Flavor Marks

To show that the specimen for a scent or flavor mark actually identifies and distinguishes the goods and indicates their source, an applicant must submit a specimen that contains the scent or flavor and that matches the required description of the scent or flavor.  In most cases, the specimen will consist of the actual goods themselves because the examining attorney must be able to smell or taste the scent or flavor in order to determine whether the specimen shows use of the mark in connection with the goods.  When submitting such a specimen, the applicant should clearly indicate on the specimen itself that it is a specimen for a scent or flavor mark application so that the USPTO will properly route the actual specimen to the examining attorney.

A "scratch and sniff" sticker for a scent mark is an acceptable specimen, provided that it is part of the packaging for the goods or is used in such a manner as to identify the goods and indicate their source.

See also TMEP §§807.09 and 1202.13 regarding scent and flavor marks.