Specimen guide for Class 26

What is a trademark specimen?

When you apply for/renew a US trademark, you must prove to the USPTO that your trademark is "used in commerce", i.e., that your goods/services are available for purchase or ordering to US customers. In practice, you will prove the use in commerce by submitting a so-called specimen, which is usually a photograph or a screenshot of your trademark used together with the goods or services you applied for (e.g., depicted on the product packaging, on your storefront, etc.).

What is considered a sufficient specimen will depend on multiple factors, including whether you offer goods (Classes 1-34) or services (Classes 35-45).

In this guide, we will look specifically at trademark specimens for Class 26 - the best format, requirements, and examples from the USPTO.

What is a proper specimen for Class 26?

Class 26 includes clothing accessories and sewing supplies, such as buttons, needles, buckles or shoelaces.

For Class 26, the most suitable specimens include:

• A photo of the goods themselves
• A photo of the packaging or a label attached to the goods

What requirements does my specimen for Class 26 have to meet?

Besides the format mentioned above, your specimen must meet a few general requirements to be accepted. For a goods class such as Class 26, these requirements include the following:

Legibility

The mark must be clearly visible, meaning it must be legible, not cropped off, etc.

Correct mark version

The mark shown on the specimen has to match the mark in the original trademark application exactly. For example, if you applied for a mark consisting of a graphical element and the brand name, the specimen can't display just the graphical element.

Realness

The specimen must be a real photograph, not a digitally altered or created image.

Not merely decorative

From your specimen, it must be clear that customers can recognize the mark as a brand/trademark, not merely as part of the design of the goods. Otherwise, the USPTO might issue a so-called "ornamental refusal". Ornamental refusals are influenced by multiple factors, including the mark itself (word mark vs. figurative mark), size, placement, and the presence of other elements, all adding to the overall impression of the mark (not) being merely decorative. For example, slogans tend to run into a problem of being perceived as ornamental when depicted on goods.

Showing connection

The specimen has to show a clear connection between the mark and the applied-for goods. Compared to the previous rules, this one is more broad and can translate to different things in practice because it's related to your use of the trademark.

For example, if you submit a photo of the product bearing the mark, that connection will be inherently there. However, if you submit a picture of a container bearing the mark, it should suggest what product it contains. Otherwise, if the connection cannot be inferred from the packaging alone, the specimen can't prove that the mark is used in connection with the applied-for goods and the USPTO will likely refuse it.

Therefore, for packaging, make sure it clearly indicates what you are selling and that this information matches the items listed in your trademark application. This can be achieved in a number of ways - by including a product depiction or description, making the product visible through the packaging, or at least taking a picture with the packaging open and showing the product inside.

Labels should ideally also include references to the applied-for goods, although labels affixed to the product can sometimes meet the requirement through that physical connection. If you are submitting a label, make sure the photo is not too close-up, and the product to which the label is attached is clearly identifiable.

Generally, to meet this criterion, a good rule of thumb is to ask: "Is it clear from the specimen that the trademark belongs to the items I said I was selling in my trademark application?"

Can I submit a website screenshot as a specimen for Class 26?

There's nothing wrong with submitting this type of specimen for Class 26; it's just that it must meet more requirements than the previous types:

• The screenshot has to show that the goods can be purchased by US customers (in practice, it's enough to show the price in USD).
• The screenshot has to show the means of ordering (e.g., button "Add to cart").
• You must provide the URL and the date of taking, either on the specimen itself or by filling it out in the form.
• The specimen has to be an actual screenshot of a page the examiner can access, not a mockup or an altered screenshot.
• The specimen must include a picture or sufficient textual description of the product.
• As we already mentioned above, the specimen must show the mark associated with the goods. Screenshots sometimes get refused if the examiner believes the trademark is associated with the website itself rather than the goods listed in your trademark application.

Meeting all these expectations can be challenging, and sometimes, brand owners have to change their websites before they can take a screenshot and submit it as a specimen. This is why we usually recommend clients provide photo evidence for tangible products if they can. If they can't, then we move on to screenshots.