What kinds of trademark clothing specimens are acceptable?
An acceptable specimen of use for trademark application covering clothing items can be especially tricky. USPTO trademark examining attorneys want to see the mark in certain areas for articles of clothing that might not be obvious. Merely showing the mark on the front of the clothing item may lead to a rejection called an ornamental refusal. Keep in mind this peculiar rule when submitting trademark clothing specimens of use.
What is an ornamental refusal?
A specimen for a clothing item may be rejected for consisting of an ornamental display or feature of the mark. For example, submitting a specimen showing the mark on the front of a T-shirt or hat may result in an ornamental refusal. An ornamental refusal occurs when the USPTO believes the mark shown on the clothing item serves an ornamental purpose (e.g., looking good) and fails to identify the source of the goods.
If the mark is shown in a smaller size on the pocket or breast portion, such a shirt or other clothing top might be acceptable as a clothing specimen. Various factors come into play such as the size and dominance of the mark, as well as the location on the clothing item.
Where should the mark be displayed?
For clothing tops, the mark should be displayed on inner tags such as tags around the neck opening. If your clothing items are tagless, it may help to display the mark on the inner surface of the clothing top.
If your clothing product uses a hangtag, then it would certainly help to show the mark on the hangtag.
How to reduce risk of rejection of clothing specimens
There are certain strategies to reduce or minimize the risk of a rejection of your clothing specimens in your trademark application. At the outset, consider filing an Intent-To-Use (ITU) application if you suspect that your current examples of usage may be insufficient or potentially defective. An ITU avoids the need to submit specimens upfront, and provides the applicant with flexibility to identify a variety of clothing items that have not yet been sold.
If and when you do file a use-based application, then try to submit multiple specimens of clothing items where the mark is not being shown in an ornamental or fashion manner. That way, if certain specimens are rejected, you will have at least one backup specimen which will hopefully be accepted. You only need to submit one acceptable specimen for Class 25.
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