T.M.E.P. § 904.11
Requirements for Substitute Specimens and Statutory Refusals

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904.11 Requirements for Substitute Specimens and Statutory Refusals

If the deficiency in a specimen amounts to failure to use the subject matter as a trademark and/or service mark, the examining attorney should issue a refusal of registration on the ground that the subject matter does not function as a mark, in addition to requiring a substitute specimen. The statutory basis for refusal is 15 U.S.C. §§1051, 1052 and 1127 for trademarks, or 15 U.S.C. §§1051, 1053 and 1127 for service marks. See TMEP §§1202 et seq. regarding matter that does not function as a trademark, and TMEP §§1301.02 et seq. regarding matter that does not function as a service mark.