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The Zest

What Counts as Proof You're Using Your Trademark

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"The application is asking for a specimen. What is that, and will a screenshot of my Instagram work?" A specimen is your proof that the brand is actually out in the world, on real products or attached to real services. For products, that means the mark on the product, its packaging, its label, or a web page where someone can buy it. For services, an ad or a website that names the service usually does the job. A mockup, an edited photo or an AI-generated image doesn't count, and it can cause bigger problems than a refusal.

Here's what the USPTO accepts, and what it sends back.

Why the USPTO asks for proof

A federal registration is for a name you're using, not one you plan to use. So every filing that claims use comes with one specimen per class showing the mark as it's actually used in commerce. That's true when you file based on current use, when you file a Statement of Use to finish an intent-to-use application, and when you file the declarations that keep a registration alive years later. The maintenance filings ask for fresh proof every time.

The point is to show the mark the way the public actually meets it, as the brand on the thing they're buying.

Products: the mark has to travel with the goods

The statute says a mark is in use on goods when it's placed on the goods, their containers, the displays associated with them, or the tags or labels attached to them, and the goods are actually sold or shipped in commerce. The specimens that work best are plain: a photo of the product with the brand printed, stamped or sewn on it, the box or bottle with the brand on the packaging, or the hang tag or label.

A web page can count as a display associated with the goods, and it's how most online brands prove use. The USPTO accepts a product page when it does three things: it shows a picture or description of the product, it shows the mark with the product so a shopper reads it as the brand, and it gives a way to order, like an add-to-cart button. It doesn't have to be your own site. A retailer's listing or a social media page can work if it meets the same test. Every web page specimen needs the URL and the date you accessed or printed it.

Here's where web pages fail. A page with no way to buy is just advertising, and so is a "where to buy" page that sends shoppers elsewhere. A pre-order page for goods that aren't available yet doesn't show use. And a brand that only appears in the web address doesn't count.

Advertising, in general, doesn't work for goods. Brochures, price lists, press releases, business cards, social media banner ads and invoices tell a buyer about the product; they aren't the product wearing the brand. The main exception is an ad with a photo of the mark actually on the product or its packaging.

Services: advertising is fair game

Services work differently, because there's nothing to stick a label on. A mark is in use for services when it's used or displayed in selling or advertising them and the services are actually being provided. So for a coach, a photographer or a salon, advertising is the right kind of proof: a web page, a brochure, an ad.

The catch is the link between the mark and the service. The rule requires a direct association, which means the specimen has to say what the service is. A website header with your brand name and nothing else isn't enough. A page with your brand name above "wedding and event photography in Tampa Bay, now booking" usually is. Business cards and letterhead that show only the name and contact details fall short for the same reason. And the service has to be real and available. A "coming soon" page can signal that you're not in use yet.

Mockups, edited photos and AI images

The rules say outright that artist's renderings, printer's proofs, computer illustrations and digital mockups are not acceptable. The examination manual names three problem types: a digital drawing of the product or packaging, a real photo altered to add the mark, and a mockup of how the mark would look on a product or website. All three get refused, because none shows the mark on goods that were actually sold.

An AI-generated product image belongs in the same bucket. It's a digitally created picture of a product that may not exist, and it proves nothing about what you've sold. Examiners look for the giveaways: a product that looks rendered rather than photographed, a logo that floats on the surface, placeholder text on a website screenshot. The refusal usually comes with a formal request for information about where the image came from and proof of sales.

Then the stakes go up. Anyone filing with the USPTO certifies that the filing's factual statements are true and supported, and the agency can sanction violations, up to striking the filing or terminating the proceeding. A knowingly false statement also falls under the federal false-statements law. In August 2025, the USPTO announced sanctions against a filing firm and the termination of more than 52,000 applications and registrations tied to it. Fake specimens were part of the conduct it described.

If your specimen gets refused

A specimen refusal arrives in an office action, and you have a deadline to respond. The usual fix is a better specimen. A substitute comes with a sworn declaration that it was in use by the right date: the filing date, for an application based on current use, or the Statement of Use deadline, for an intent-to-use application. If you don't have a real specimen from that window, you can switch the application to intent-to-use and file proof once you have it. Or argue the original was fine, if it was.

Take the picture before you need it

If you sell products, photograph the real product with the brand on it, plus the packaging and the label, and save a screenshot of the product page with the URL and date showing. If you offer services, save the page that names both your brand and what you do. Then the proof is ready, whether it goes in with your application or with the Statement of Use, which is $150 per class. What a trademark actually costs has the rest of the numbers.

If you're getting ready to file and want to know whether what you have will hold up, you can see how the search and filing packages work on the services page, and the FAQs page answers most of what comes up before a first call.

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(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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