Specimen guide for Class 9

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 9 - the best format, requirements, and examples from the USPTO.

What is a proper specimen for Class 9?

Class 9 is a broad class that includes scientific devices, media content and software, glasses and protective equipment.

This class covers tangible goods (such as computers or diving equipment) as well as intangible goods (such as games software, downloadable mobile applications or NFTs); therefore, the appropriate specimen will depend on your product.

Bear in mind that Class 9 is a goods class, meaning what you sell should qualify as a product and not a service. If you offer software that can be downloaded or is recorded on physical media, it will fall under Class 9. Software that runs in a browser will most likely fall under Class 42. If you have a SaaS business that includes a mobile app, you might want to consider a trademark in both classes.

For tangible goods in Class 9, the most suitable specimens include:

• A photo of the goods themselves.
• A photo of the packaging or a label attached to the goods.
• You can also submit a website screenshot, although we usually don't recommend it since screenshot requirements are harder to meet - more on that below.

For intangible goods in Class 9, appropriate specimens include:

• A screenshot of a software splash page, app store listing, or a similar page.
• If the trademark is used on digital images, such as downloadable artwork or graphics, a specimen can be a screenshot or digital representation of how the trademark appears on these images.

What requirements does my specimen for Class 9 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 9, 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/screenshot, not a digitally altered or created image.

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 (you don't have to use the exact same wording from your trademark application), making the product visible through the packaging, or at least taking a picture with the packaging open and showing the product inside.

We also have to note that the actual mark can play a role here. Some marks include wording or imagery that suggests what the goods are, so putting them on the packaging makes fulfilling this requirement easier. However, having such a mark is by no means necessary.

For screenshots, the specimen must include a picture or sufficient textual description of the product and then show the mark associated with this product. This criterion applies to both tangible and intangible goods. For tangible 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, which is another reason we usually don't recommend screenshots as the first option for this kind of product.

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?"

Additional requirements for website screenshots

For tangible goods in Class 9:

• 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").

For intangible goods in Class 9:

• The screenshot has to include a "Download", "Get", or "Instal" button. "Login" type of button is not acceptable for Class 9, only for Class 42.