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What do you need to know?

Every application must show use. It is therefore important that the proper use is provided in

the trademark application. If a mistake is made as to a proper specimen or date of use, the application may be denied, or the registration may be challenged later. It is therefore important to know what to supply when providing a proper statement of use.




What is required to show use?

To file a statement of use, an Applicant must state the date the mark is first in use, the date the mark is first used in commerce, and an example specimen.


What is the date of first use?

A date of first use anywhere is the date when (1) the goods were first sold or transported, or the services were first rendered, under the mark, and (2) such use was bona fide and in the ordinary course of trade. The requirement that the use was bona fide prevents users from manufacturing a situation in which the mark is used simply to obtain a registration. In other words, the use must be legitimate to an actual customer and not a token sale in order to simply show use. The use anywhere permits the Applicant to indicate the first use, regardless of the location. It does not matter where that use occurred: inside or outside the United States, local or national, or intrastate or interstate.

The date of first use anywhere will always be earlier than or the same as the date of first use in commerce.

What is the date of first use in commerce?

A date of first use in commerce is the date when (1) the goods were first sold or transported, or the services were first rendered, under the mark in a type of commerce that may be lawfully regulated by the U.S. Congress (such as interstate commerce or commerce between the United States and a foreign country), and (2) such use was bona fide and in the ordinary course of trade. The requirement that the use be bona fide is the same as for a date of first use. In other words, the use must be a legitimate sale and not simply manufactured in order to show use to obtain a trademark registration.


A mark is in use in commerce with goods when (1) the mark is placed on the goods, packaging for the goods, or displays associated with the goods (including webpage displays), and (2) the goods are actually being sold or transported in commerce.


A mark is in use in commerce with services when (1) the mark is used in the sale, advertising, or rendering of the services, and (2) the services are actually being rendered in commerce.


What is a proper specimen?

Along with the date of first use, the Applicant must also show an example of using the mark. A specimen is the evidence that the trademark office uses to ensure that the mark is actually being used in the marketplace. It is what consumers see when they are considering to purchase, or are purchasing the goods or services provided in relation to the mark.

For goods, a specimen shows the mark being used with your goods in a way that directly links the mark to the goods as they are being considered for purchase, or being purchased. Therefore, example specimens that are permissible include labels or tags with the trademark that are actually attached to the goods, or other product packaging that is coupled to the goods when the product is sold. A website may be used as a specimen only if the website includes the goods being sold, the mark in proximity to the goods that can be purchased, and a way for a customer to directly purchase the goods. In other words, there must be a way to purchase the product directly from the website, and not simply obtain information about the product. When a website is being used as a specimen, the Applicant must identify the website and the date the website was accessed to provide the example of use.

For services, a specimen shows the mark being used with the services in a way that directly links the mark to the services as they are being consumed/provided or purchased. Because there are not any goods to directly attach the mark to the goods, the mark must instead be used in relation to the description of the services that are being provided. Therefore, the mark may be used with brochures, advertisements, websites, or other promotional materials. Other acceptable specimens may also include business signs where the services are rendered (such as a store front), or a services vehicle displaying the mark. In order for a specimen for services to be accepted, the use must include how the customer can purchase or obtain the services. Generally, a request for a demonstration will not be sufficient as an example of use. If the services are for services provided over a network (such as online services), the website for providing the services may be the specimen or login screens may be valid specimens. However, as for goods, specimens using websites must include the URL for the website and the date the website was accessed to generate the example.

From the USPTO, an acceptable specimen must:

  • Be a real example of how you use your trademark in commerce in providing your goods or services (not a mockup, printer’s proof, digitally altered image, rendering of intended packaging, or draft of a website that shows how your mark might appear).

  • Show your trademark used with the goods or services listed in your application.

  • Depict the same trademark as shown on your drawing.

  • Show your use of your trademark (not use by someone else, such as press releases sent exclusively to news media).

  • Be an appropriate type of specimen based on whether you have goods or services. For example, advertising material is an acceptable specimen for services, but not for goods.

  • Show your trademark used in a way that directly associates the mark with the goods or services.

  • Show your trademark used in a way that consumers would perceive it as a source indicator for the good or services in your application (it functions as a trademark).

  • Include the URL and date you accessed or printed the webpage in your submission.

What if not all goods or services are in use?

The allegation of use must apply to all of the listed goods and services in the application. If not all of the goods or services are actually in use, then the Applicant can separate the application into separate applications so that the application can register for the part of the goods and services that are in use. The Applicant can therefore obtain protection for the actual use of the goods or services, while also protecting the future expansion of the mark into other goods or services. Therefore, when asked about the mark being used in commerce, please make sure you are aware of the goods and services that are included in the application, and that you are providing information for all of the goods and services in the application.


Is there a difference between an intent to use or an in-use application?

Any trademark application requires the mark owner to show use before it can be registered. It does not matter if the application was filed as an intent to use or as used. However, there are differences if the application starts as an intent to use or as an application where the mark is in use.


If the application was filed under the basis that the mark is in use, then the applicant must file a specimen at the time the application is filed. The specimen will be reviewed. If there are deficiencies in the specimen, the Applicant can correct the deficiencies or transfer the filing basis to an intent to use.


If the application was filed under the basis that the applicant intends to use the mark, then the applicant must file a specimen within six months of the date of allowance. If an Applicant cannot show use within six months, then the Applicant can request an extension of time for an additional six months. The Applicant can request extensions for periods of six months for up to a maximum of three (3) years. Once the Applicant files a request to show use, the Applicant is only permitted one additional extension of time to show use. Therefore, it is important to know what is required in order to show use.


Additional Information

The USPTO has additional information about the requirements for a statement of use, found here:



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