1301.04(h)(iv) Common Forms of Specimens for Modern Technology-Related Services
As noted above, an applicant may submit a specimen that shows the mark as used in rendering the services. These specimens are often submitted in connection with modern technology-related services, and common types are discussed below.
For specimens showing use of the mark in rendering the services, an explicit, textual reference to the services or their trade, industry, or field of use is not necessary, but an indication of the services sufficient to establish direct association between the mark and the services is required. The examining attorney must refuse the specimen if neither the specimen itself nor the description of the specimen provides sufficient information to decipher the nature of the services, determine the manner of use, and assess whether the necessary mark-services association exists. See TMEP §1301.04(g)(i).
1301.04(h)(iv)(A) Sign-In Screens
Applicants often submit screenshots of sign-in screens as specimens for online services, such as non-downloadable software services and application-service-provider services. Sign-in screens show that the services are available and the context indicates that they are accessed by inputting credentials, which is a generally known and accepted means of accessing many online services. In re Metriplex, Inc., 23 USPQ2d 1315, 1317 (TTAB 1992) (finding the submitted specimens acceptable to show use of applicant’s mark in connection with data transmission services because "we have a situation where the service are rendered through the means of a tangible item, namely, a computer terminal, so that the mark can appear on the computer screen, and the specimens show such use").
Some sign-in screens may include a reference to the services and effectively function as an advertisement. See TMEP §1301.04(i), Example 6 (MYFITAGE). Other sign-in screens may contain no reference to the services, but may nonetheless be acceptable if the overall content of the specimen sufficiently indicates the services. Or, the specimen description may explain the context of the services by stating the specimen is a sign-in screen for accessing the services and that applicant is offering the type of services being applied for. Such an explanation may provide a sufficient basis for accepting the sign-in screen specimen, as long as there is no contradictory information in the record indicating that the mark is not associated with the identified services. See TMEP §1301.04(i), Example 4 (STAFFTAP).
1301.04(h)(iv)(B) Title or Launch Screens
A title or launch screen is an on-screen graphic typically displayed at the beginning of entertainment content, such as video games or ongoing television programs, often with other information about the content featured. For services such as Class 41 entertainment services involving the provision, production, or distribution of entertainment content, screenshots of title or launch screens from the content may create the requisite direct association between the mark and the services. Thus, title or launch screens may be acceptable specimens as long as their nature as such is clear either from the overall look and feel of the specimen or from the applicant’s description of the specimen.
While showing the title or launch screen being displayed on any particular electronic device (e.g., television, computer, or smartphone) is not required, a specimen showing an electronic device bearing the title or launch screen may be acceptable without further explanation because it places the mark in the context of how the services are rendered. See TMEP §1301.04(i), Example 14 (OUTERNAUTS). A title or launch-screen specimen showing only the mark but not the electronic device, with no specimen description or an insufficient description, may require a specimen description identifying the specimen as a title or launch screen and placing the mark in the context of the services. See TMEP §1301.04(i), Example 13 (DELICIOSO).
While title or launch-screen specimens may be acceptable to show service-mark use, the mark must be refused if the specimen shows that the mark is the title of a single creative work (e.g., the title or name of one episode of a television or radio program, one movie, or one show presented as a single event). See TMEP §§1202.08–1202.08(f) regarding titles of single creative works and §1301.02(d) regarding titles of radio and television programs.
1301.04(h)(iv)(C) Webpages
Webpages from an applicant’s or a third-party’s website are routinely submitted as advertising and are acceptable if they show the mark used as a service mark, explicitly/textually reference the identified services, and associate the mark with those services.
Webpages lacking a reference to the services may be acceptable if they show use of the mark in rendering the services. See TMEP §1301.04(i), Example 14 (OUTERNAUTS).
Webpages from social-networking websites should be scrutinized to ensure that the mark is properly associated with the identified services. Some applicants may mistakenly mischaracterize their services as "social networking" because they assume that advertising or promoting their non-social-networking services via a social-networking website means they are providing social-networking services. For instance, an applicant may mistakenly file an application for "online social-networking services" and provide a Facebook® webpage as a specimen when, in fact, they operate a pet store and are only using the Facebook® website to advertise the pet store and communicate information to and messages with actual and potential customers. Such a specimen is not acceptable for the social-networking services since it does not demonstrate that the applicant is providing these services.
1301.04(h)(iv)(D) Software Applications ("Apps")
Software applications ("apps") for smartphones and computer tablets are now commonly used to provide online services. Apps are simply the interface that enables the providers of the services to reach the users and render the services, and the users to access those services. Common specimens for such apps are usually screenshots of electronic devices demonstrating the apps delivering the services. Such a specimen may not always depict proper service-mark use of the mark in connection with the identified services, but it may be acceptable if the displayed screenshot clearly and legibly shows the mark associated with the identified services as the services are rendered or performed via the app. See TMEP §1301.04(i), Example 15 (KURBKARMA).