A specimen refusal: the proof of use you sent was not the right kind of proof
The examining attorney concluded that what you submitted does not show the mark being used in commerce on or in connection with the goods or services you identified. This is a refusal about evidence, not about your mark.
37 C.F.R. §2.56 · TMEP §904.07
What the refusal is really about
A specimen has to show the mark as a buyer encounters it while buying. That is why a logo file, a business card, an invoice, an internal mockup, or a social media profile picture is routinely rejected — none of them shows the mark in the act of commerce.
For goods, the usual accepted forms are the mark on the product itself, on its packaging or label, on a tag, or on a point-of-sale display.
A webpage can work, but only if the page itself is where you can buy the thing — the mark, the goods, and a real means of ordering all visible on the same page.
For services, the specimen has to show the mark used in advertising or rendering the service, with the service itself identifiable from the page.
This is usually the most fixable refusal on the list, because in most cases the applicant genuinely is using the mark properly and simply sent the wrong picture of it.
What the examining attorney weighs
The test applied here: The specimen must show the mark as actually used in commerce on or in connection with the identified goods.
- whether the specimen shows the mark on the goods, packaging, or a point-of-sale display
- whether a webpage specimen shows a means of ordering
- whether a substitute specimen supported by a verified statement can be submitted
A substitute specimen is not just a better photograph
A substitute specimen has to show use that was already happening at the relevant date — it is evidence of a past fact, not a new fact you create to satisfy the examining attorney. That is why a substitute specimen has to be supported by a verified statement, signed by you, about when the specimen was in use. Two consequences follow that applicants regularly get wrong. First, you cannot mock up a label, photograph it, and submit it: if that packaging was not actually in use, the statement you are asked to sign is not one you can truthfully sign, and signing it anyway is a far worse problem than a specimen refusal. Second, your substitute has to match the goods as identified. If your identification covers several categories and your new specimen only shows one of them, you have solved the refusal for part of your application and not the rest.
What makes a response stronger
- A clear, legible photograph of the actual label or tag on the actual product
- A screenshot of a live listing page showing the mark, the product, the price, and a working way to order — with the URL visible
- The date the specimen was in use, which you will be asked to state under a verified statement
- Checking that the mark in the specimen matches the mark as filed
Your deadline, and the number a lot of pages still get wrong
You have 3 months from the issue date printed on the office action — not from the day the email arrived, and not from the day you opened it. One extension of 3 more months is available for $125, and you have to request it before the original date passes (37 C.F.R. §2.62(a)(2)).
This changed on December 3, 2022. Before that the period was a flat six months, and a great deal of guidance still published online says so. If a page tells you that you have six months by right, it is describing the old rule.
USPTO: if a response is filed after the deadline the application will be abandoned and application fees will not be refunded. That is the whole reason to act on this now rather than in a month.
You are allowed to answer this yourself
If the applicant is domiciled in the United States or one of its territories, you may respond to an office action in your own name. You filed the application yourself; you may answer it yourself. Nothing about a refusal changes that.
If the applicant is domiciled anywhere else, the USPTO requires a US-licensed attorney to represent you. markanswer cannot help in that case and refuses the sale before taking any payment, rather than selling you a document you are not permitted to file.
When to hire a trademark attorney instead
If a second specimen is also refused, if the refusal implies your use in commerce started later than your filing basis assumed, or if answering honestly would mean amending your filing basis or your dates of use. Those touch the validity of the application itself.
Answering this one in your own name
markanswer drafts the response from your office action and your own answers about your business, organised the way the examining attorney reads it, with a plain statement under every argument of where it is weak and what evidence would help. You review it, correct anything that is not true of you, sign it and file it yourself through TEAS. $149, once. Read a complete one first — it is free.
The other four refusals
This page explains a category of USPTO refusal in general terms. It is not legal advice about your application, and markanswer is not a law firm and never represents anyone before the USPTO. Every citation on this page comes from the same committed authority list the drafting step works from.