Most businesses know the value of filing an “intent to use” federal trademark application for a planned trademark. In doing so, it is important to consider how a mark will be used – whether it will be applied to goods (tangible products) or used in connection with services – before preparing a trademark or service mark application. How you describe your goods or services in your application will also determine the evidence of use (“specimen”) that you eventually submit to the Patent and Trademark Office. An issue often arises when a seller of goods files an application to register a mark that they would like to use, but then they ultimately decide not to put the mark on the goods themselves.
A label or tag displaying the mark or a photograph of the mark on the goods or on the packaging containing the goods would be required as a specimen for a trademark application covering “goods.” A few examples of specimens that will not generally work for goods include invoices, brochures, letterhead, and business cards.
Service mark specimens are usually easier. Acceptable specimens for a service mark application for services include many of the types of specimens that are unacceptable for a trademark application for goods, like brochures, advertisements, webpages, business cards, or stationary showing the mark in connection with the services.
If you sell goods, not services, but decide to not put your planned trademark on the goods themselves (or their packaging), you probably won’t be able to provide an adequate specimen.
Carefully contemplating how your mark will be used must be a key consideration when starting the trademark application process.