Specimens are a prominent focus at the United States Patent & Trademark Office (USPTO) as they play a crucial role in maintaining an accurate Trademark Register and preserving its integrity. Specimens are essentially examples that demonstrate the use of a mark on goods or services in commerce. The type of specimen to be submitted to the USPTO depends on whether goods or services have been identified in the trademark application. There is less margin for error with specimens for goods since the mark can be directly displayed on the goods, tags, labels, packaging, containers, or associated displays. Specimens for services are more intricate. Common examples of service use can be found in marketing materials, websites, business cards, menus, and brochures. The specimen must clearly indicate an association between the mark and the services. If the use example only displays the mark itself without any reference to the type of services, it will not be acceptable for submission to the USPTO.

The USPTO has expressed concerns over applicants submitting inauthentic specimens and registrants ceasing to use their trademarks without surrendering them, leading to a cluttered Register. Clearing trademarks before filing an application has become increasingly challenging. It is therefore critical to eliminate marks that have been abandoned, are not in use, or rely on fraudulent specimens. The USPTO has implemented a program to report digitally altered or fabricated specimens in order to cleanse the Trademark Register of fraudulent submissions by applicants. The objective is to include only genuinely used marks in the Register.

To further achieve this goal, the USPTO has initiated a pilot program that allows parties to engage in an expedited cancellation procedure if the plaintiff has grounds to allege non-use. Typically, non-use cancellation proceedings can last for several years if fully litigated. However, non-use matters should be easily resolved due to their straightforward nature. This expedited cancellation process should be resolved within approximately 70-170 days, significantly shorter than the usual two years or more.

A recent precedential case from the TTAB in June highlights the ongoing challenges faced by applicants in submitting appropriate specimens. Unfortunately, when the USPTO refuses a specimen, the consequences can be severe, and rectifying the issue can be extremely costly. In the case of In re The Cardio Group, LLC, 2019 USPQ2d 227232 (June 20, 2019) [precedential], the applicant sought to register the mark THE CARDIO GROUP & Design for "retail store services featuring medical devices." The Examining Attorney refused to accept the specimen, stating that the mark was not shown to be used in connection with the services.

The applicant submitted several specimens, including medical data of a patient with the mark, a sales agreement featuring the mark, and a sales invoice displaying the trademark, THE CARDIO GROUP & Design, along with certain purchased devices. The Examining Attorney argued that the specimens demonstrated the applicant's use of the mark for selling products but failed to provide evidence of retail store services. While the specimen does not necessarily have to explicitly refer to the services identified in the trademark application, there must be a way for consumers to perceive an association between the mark and the services.