Trademark Specimen of Use — Is “TM” or ® OK to use in a specimen of use?

It is the policy of the  U.S. Patent & Trademark Office (PTO) that trademarks may not be warehoused, or saved for later use.  Therefore, the PTO requires evidence of actual use in commerce before allowing registration of a trademark.  The evidence of actual use is called a “specimenâ€.

Each trademark application must include an acceptable “specimen†before the PTO will allow registration of a trademark.   A specimen shows how the mark is actually being used.  It is not the same as the drawing of the mark, which shows only the mark you are trying to register.   A specimen is generally what consumers actually see when they are trying to purchase goods or services identified by the trademark.

A specimen cannot use ®  because this is the symbol of a federally registered trademark.  Using this symbol in a specimen is inappropriate, and may result in rejection of the trademark application.

It is appropriate, and in fact may be helpful, to use TM next to the mark in a specimen.  The use of TM tends to give visual prominence to the mark.   In re Sones, 590 F.3d at 1289, 93 USPQ2d at 1124 (“Though not dispositive, the ‘use of the designation “TM†. . . lends a degree of visual prominence to the term.’†(quoting In re Dell Inc., 71 USPQ2d at 1729)); In re Osterberg, 83 USPQ2d 1220, 1224, n.4 (TTAB 2007).

Thus, when submitting a specimen with your trademark application, it’s OK to use TM after your trademark.