904.04(a)(iii) General Examination Considerations for Digitally Created/Altered or Mockup Specimens 
Examining attorneys and post registration specialists must carefully evaluate each specimen for signs indicating that it may have been digitally created/altered or is a mockup. Descriptions of the specimens should be taken into consideration. However, if facts in the record contradict the accuracy of the description of the specimen, these must be considered when determining the acceptability of the specimen.
Retouched images. Where the specimen is an image of a product bearing the mark and the image appears to be a retouched image, the examining attorney may conduct research to confirm that a product depicted in the specimen exists. If the examining attorney is able to confirm that the product depicted in the specimen exists and shows use of the mark in commerce, the examining attorney may accept the specimen. In that case, the examining attorney must enter a Note to the File that indicates what resources were checked without including any statements or legal conclusions regarding the use of the mark. The Note to the File may be "checked applicant’s website at [URL of page checked]" or "checked Amazon.com at [URL of page checked]." In instances where the examining attorney confirms that a product exists bearing the mark, but the content of the listing or page where the product is found is suspicious for other reasons that indicate it is unlikely that products or services offered under the mark have actually been sold or rendered in commerce, the examining attorney may issue requests for information concerning the applicant’s use of the mark. 37 C.F.R. §2.61(b).
Refusing Digitally Created/Altered or Mockup Specimens. Submissions of this type shall be refused under Trademark Act Sections 1 and 45 (15 U.S.C. §§1051, 1127 ) if submitted prior to registration, or under Sections 8 or 71 and 45 (15 U.S.C. §§1058, 1127, 1141k ) if submitted post registration, because they do not show actual use of the mark in commerce. See TMEP §904.04(a). The refusal must include an explanation of the reasons the specimen appears to be digitally created or altered.
When issuing a refusal based on the specimen not appearing to show actual use of the mark in commerce, the examining attorney must also issue a request for information under 37 C.F.R. §2.61(b) requiring the applicant to provide detailed information about the submitted specimen and other information and documents relevant to aiding a determination as to whether the mark is actually in use in commerce.
A request under 37 C.F.R. §2.61(b) may require information regarding one or more of the following: (1) the goods or services for which the specimen was submitted; (2) whether the specimen was created for submission with the application and if so, when; (3) the source of the image depicting goods; (4) how the mark is used on goods in the actual sales environment or in the rendering or performing the services, including representative examples showing such use and URLs and publication dates for web pages; (5) when the goods or services were first available for purchase and whether they are still for sale; (6) proof of sales in commerce with or within the United States for the goods in the specimen, redacting personal or private information of buyers as necessary; (7) proof of use for additional goods or services identified in the application; and (8) any other information relevant to a determination regarding actual use of the mark in commerce on or in connection with the identified goods/services. However, an examining attorney should ensure that the request for information is tailored to the particular facts of an application and generally should not seek information that already exists in the record.
In most cases, the examining attorney will issue a refusal of registration under Sections 1 and 45 for failure to show use in commerce is being made. Only in very limited circumstances where the examining attorney cannot point to indicia on the specimen itself to support a refusal but there is something suspicious about the contents or display of the specimen that suggests that the mark is not in actual use in commerce, and the examining attorney needs more information for proper examination of the issue, may an examining attorney issue a request for information without also issuing a refusal.
In every case, the examining attorney must also include all other relevant specimen-based grounds in the refusal under Sections 1 and 45. For example, applications containing digitally created/altered or mockup specimens may not show use of the mark with any of an applicant’s goods or services listed in the application. Likewise, a digitally created website or advertisement also may not show a direct association between the mark and the goods or services. Additionally, if the specimen fails to show the mark functioning as a mark (e.g., the mark is merely informational or is used in an ornamental manner) the examining attorney must also issue a refusal under Sections 1, 2, and 45 or Sections 1, 2, 3, and 45, as appropriate. See TMEP §§904.07(a), (b).
Evidence for refusal of specimen. Generally, extrinsic evidence is not required to support a first-action refusal for a digitally created/altered or mockup specimen because the specimen itself provides the evidence why it cannot be accepted. Nevertheless, the examining attorney should conduct a search for an image if the examining attorney recognizes the image as appropriated or if there are other signs that the specimen is digitally created or altered or a mockup. Such evidence should be provided to create a more comprehensive record in a final refusal.
The examining attorney may use free image search and analysis tools available online, such as Google®. When making Google® evidence part of the record, the examining attorney must both (1) provide complete information as to the date the evidence was published or accessed from the Internet and its source (e.g., the complete URL address of the website), and (2) download and attach the evidence to the Office action. See TMEP §710.01(b).
Other sources of evidence the examining attorney may consider are Office records such as an X-search record for a registration for the trade dress associated with an appropriated image or a copy of the specimen from the file of the registered mark associated with an appropriated image.
Evaluating Responses. An applicant’s response options to the refusal are to: (1) submit a verified substitute specimen showing actual use in commerce; (2) amend the filing basis to Section 1(b) (and submit an acceptable specimen with a later-filed amendment to allege use or a statement of use); or (3) argue that the original specimen shows actual use in commerce. If the applicant submits an acceptable substitute specimen or amends the filing basis to Section 1(b), the request for information will be withdrawn.
If the applicant satisfactorily responds to all requests for information and the original specimen does not contradict those responses, the specimen must be accepted. If the applicant does not respond to the request for information, but provides a substitute specimen meeting the requirements of 37 C.F.R. §2.56, the examining attorney may generally accept the substitute specimen and withdraw the requirement for information. However, if (1) other evidence or information calls the acceptability of the substitute specimen or its use in commerce into question or (2) the applicant does not provide an acceptable substitute specimen and fails to respond or provides incomplete or unsatisfactory responses to the request for information, the examining attorney must issue a final refusal as to the specimen under Sections 1 and 45 and a final requirement as to the request for information under 37 C.F.R. §2.61(b).