Mutilation in trademark world
An application based on Trademark Act Section 1(a) must include a specimen
showing the applied-for mark in use in commerce. One of the requirements of a statement of use is that it must include a specimen showing how the mark is used in commerce. Further, once a statement of use has been filed, as is the case herein, the drawing of the mark must be a substantially exact representation of the mark as used on or in connection with the goods and/or services.
When the representation on a drawing does not constitute a complete mark, it is sometimes referred to as a “mutilation” of the mark. This term indicates that essential and integral subject matter is missing from the drawing. An incomplete mark may not be registered.
An example of mutilation is in the decision of In re Intrexon of the TTAB (July 30, 2016). The applicant sought registration of the mark BETTER in standard characters for Gene therapy services in Class 42 based upon section 1(b) (intent to use). However, the specimen the applicant submitted as evidence of use showed the mark BETTER DNA. The TTAB agreed with the Examining Attorney and affirmed the refusal on the basis that the specimen did not show the applied-for mark in use as a service mark.
So, care must be taken when submitting a trademark application to be sure that the drawing submitted matches the mark used in the specimen.
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