1208.05 Applicant’s Own Materials
An applicant’s materials, such as its website or advertisements describing its goods or services, or specimens showing use of its mark, may be considered. [ Note 1.] This is the case even if the applicant files its application based on an intent-to-use or changes the basis of its application to intent-to-use. [ Note 2.]
An applicant’s submissions of expert reports [ Note 3.] and surveys [ Note 4.] are considered for their probative value.
NOTES:
1. In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1710 (Fed. Cir. 2017) (as a matter of law, the Board "did not err by considering the explanatory text of the specimens in the descriptiveness inquiry"); In re Emergency Alert Sols. Group, LLC, 122 USPQ2d 1088, 1091 n.16, 1092 (TTAB 2017) (Board considered applicant’s own webpage and specimen describing its services in affirming genericness refusal); In re Weiss Watch Co., 123 USPQ2d 1200, 1202 (TTAB 2017) (Board, in affirming surname refusal, considered applicant’s website stating that WEISS is the surname of Applicant's founder and head watchmaker).
2. In re Hunter Fan Co., 78 USPQ2d 1474, 1476 n.2 (TTAB 2006) (specimen submitted when application based on Trademark Act § 1(a) remains of record even though applicant later amended its application to Trademark Act § 1(b)); In re Promo Ink, 78 USPQ2d 1301, 1303 (TTAB 2006) (examining attorney may introduce evidence that applicant’s own literature supports descriptiveness of term despite the fact that application based on intent-to-use; fact that applicant has filed an intent-to-use application does not limit the examining attorney’s evidentiary options or shield an applicant from producing evidence that it may have in its possession).
3. See, e.g., In re Country Music Association, Inc., 100 USPQ2d 1824, 1830-31 (TTAB 2011).
4. See, e.g., In re Country Music Association, Inc., 100 USPQ2d 1824, 1831-32 (TTAB 2011).