The following is an edited transcript of my video, The Types of Acceptable Evidence for Trademark Applications.
An important piece of the trademark application puzzle is submitting proper evidence to the USPTO to demonstrate use of the mark in connection with all of the goods and services that are in the application. The evidence doesn’t always have to be submitted at the time of filing the initial application filing because there is an intent to use application that can be filed without evidence at the time of submission. But a use-based application, or eventually an intent to use application, will always eventually require proper evidence of use.
The nature of the acceptable evidence of use differs depending on whether you’re filing an application for trademark for goods (a tangible physical product like a cell phone case, a packaged food item or a part for a car or computer). Goods are going to have one type of evidence that’s acceptable. Services like accounting, real estate, or now a lot of web-based and internet services have different forms of evidence that are acceptable.
Let’s start with services. What you need to show is acceptable evidence of the trademark in marketing materials that both display the mark as well as some connection to the services being offered. It might be something as simple as a business card that shows the mark, the brand, and has a description of the services: “Contact me about selling your home or about buying a new home” for real estate services. Or it could be a brochure or a flyer. And today, the vast majority of service trademark evidence is submitted in the form of screenshots from the internet.
A webpage, even a Facebook or Instagram page in some circumstances can be acceptable advertising for the services, as long as it describes what those services are and uses the trademark in connection with them. The important thing there is when you take a screenshot of that webpage or social media, you need to include the date that it was captured and the URL of the page when you submit it to the USPTO. There are a couple different ways to do that, and that’s an important tidbit to know.
For goods—physical items like a laptop, a tire, a radio—the type of acceptable evidence is different. A webpage will generally not be sufficient, unless it actually shows the item for sale and you can add it to a cart or purchase it and there is purchasing information on there. Otherwise, the best type of evidence is generally going to be a picture of the product itself if it has the trademark on it somewhere, or a picture of the tag, label or packaging for the product that uses the trademark.
Another form that we sometimes submit for product evidence is instruction manuals because sometimes, particularly with a technical product, the mark may not be displayed on the product itself, or it might be too small to display the mark. As a result, instruction manuals can also be an acceptable form of evidence.
To summarize, evidence is an important piece of the puzzle to get a trademark application approved properly. Use these tips to help with the trademark evidence piece of your USPTO trademark application.
