1301.04(a) Whether the Specimen Shows the Mark as Actually Used in Commerce by the Applicant in the Sale or Advertising of the Services
The specimen must show the mark as actually used by the applicant in the sale or advertising of the services. 37 C.F.R. §2.56(b)(2). Acceptable specimens include newspaper and magazine advertisements, brochures, billboards, handbills, direct-mail leaflets, menus (for restaurants), press releases that are publicly available (e.g., on the applicant’s website), and the like. Business documents such as letterhead and invoices may be acceptable service-mark specimens if they show the mark and a direct association between the mark and the relevant services. Id.
A clear and legible photocopy, photograph, web page printout, or other similar type of reproduction of an otherwise acceptable specimen is sufficient. See 37 C.F.R. §2.56(c). The reproduction must show the entire specimen or enough of the specimen that the nature of the specimen, the mark, and the service with which the mark is used are identifiable. Id. A web page submitted as a web page specimen must include the URL and access or print date. Id. See TMEP §1301.04(h)(iv)(C) regarding web page specimens for services. However, artist renderings, printer’s proofs, computer illustrations, digitally created images, or similar mock-ups of how the mark may be used, press releases sent exclusively to news media, or printed articles resulting from such releases are not acceptable because they do not demonstrate the required use of the mark by the applicant. See id.; TMEP §1301.04(f). See TMEP §904.04(a) regarding digitally created or altered or mockup specimens. In some instances, a specimen or the specimen description may indicate that a specimen is not yet in use in commerce by inclusion of wording such as "internal only," "printer’s proof," "website coming soon," or "under construction."