What If I Submit A Fake Specimen In My Trademark Application | Dallas Trademark Attorney

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Earlier this week I discussed trademark specimens, and the necessity of proving actual “use” of a trademark in commerce before a mark will be issued a trademark registration. Your proof of use is called a “specimen,” and when you file your application you are swearing under penalty of perjury that you are using the mark as shown on the specimen. But what if you lie?
Now, I’ve seen all kinds of attempts at filing improper specimens, including from my own clients. They sometimes don’t understand that they have to show how they are actually using it on real goods, not how it looks on a computer-generated mockup. When I detect that the specimen isn’t a real photo, I remind them that I need to see actual use, not pretend, just-for-the-cameras use. This is important because submitting a fake specimen is fraud on the Trademark Office, and your mark can be cancelled at any time in the future for fraud. Fraud is always found out, especially if you later are involved in litigation over your mark, and the Examiner will refuse a specimen that is clearly a computer mockup of what the Applicant wishes their “use” looked like.
The USPTO has now started to actively combat improper specimens, specifically targeting “digitally created, altered, or fabricated” specimens. In fact, the problem is so serious that the trademark office has created a special email address to report such issues: tmspecimenprotest@uspto.gov When a mark is published for Opposition, persons finding fake specimens can email during the 30-day opposition period to protest fake specimens without the necessity of filing a formal Opposition proceeding.
Why all the fake filings? The Chinese government -- isn’t it always the Chinese? -- is apparently paying Chinese applicants to obtain trademark registrations here in the United States, irrespective of the actual use on goods here in the United States. This came to light when the USPTO discovered multiple trademark applications with the exact same specimen. The problem is so pronounced that the trademark office has taken the unusual step of launching an initiative whereby third parties can report fake trademark specimens.
China has for years been responsible for flouting United States trademark and copyright laws via the production and importation of counterfeit goods. It’s unclear whether this is mere profiteering on the part of the citizens, or an active attempt by the Chinese government to undermine our intellectual property laws. Why is this issue so important? Because absent actual use, an applicant doesn’t deserve a trademark registration; there are no such things as “squatter’s rights” in trademark law. When an applicant gets a trademark he doesn’t deserve, then that mark is unavailable for someone who might actually make use of the mark. And that’s just not fair, and it’s contrary to the purpose of the Lanham Act, which is to protect source identifiers so that consumers can identify the source of the goods.

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