TMEP 904.04(a): Drawing or "Picture" of the Mark; Digitally Created or Altered Specimen

October 2017 Edition of the TMEP

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904.04(a)    Drawing or "Picture" of the Mark; Digitally Created or Altered Specimen

A photocopy of the drawing required by 37 C.F.R §2.51 is not a proper specimen. 37 C.F.R. §2.56(c).  Similarly, the specimen may not be a "picture" of the mark, such as an artist’s rendering, a printer’s proof, a computer graphic that merely illustrates what the mark looks like, or an image of the goods or its packaging or advertising matter for services that has been digitally created or altered to include the mark. Such items do not show actual use of the mark on or in connection with the goods or services in commerce and registration must be refused under Sections 1 and 45 of the Act. 15 U.S.C. §§1051, 1127; see In re Chica, 84 USPQ2d 1845, 1848 (TTAB 2007) (holding that "a mere drawing of the goods with an illustration of how the mark may be displayed" was not an acceptable specimen because it did not show actual use in commerce); In re The Signal Cos., 228 USPQ 956, 957-58 n.4 (TTAB 1986) (noting that a printer’s proof of an advertisement would not be an acceptable specimen because it is does not show actual use in commerce). See TMEP §901.01 regarding the definition of "use in commerce" and §904.07(a) for further discussion of "use-in-commerce" refusals.