This post contains “best practice guidelines” for submitting a trademark Letter of Protest to support a refusal.

Pat Protester worked directly with USPTO to develop the trademark Letter of Protest evidence guidelines in this post. (Dave Cadoff has an excellent post on How to File Letters of Protest Against Frivolous Trademarks at Merch Informer, showing basics of the trademark search process and how to print evidence. This post takes that one step further to give a checklist for more compelling evidence. It’s based on multiple conversations with Attorney Advisors and analysis of what has worked or failed in well over one hundred protests submitted by the Merch community.)

Since search results (like those used in Dave’s method) are not admissible at TTAB, a Letter of Protest with the type of evidence shown in Dave’s post may not persuade the Examining Attorney the application should be refused. Depending on the Attorney Advisor who reviews the protest submission, the Examining Attorney may never even see it! Follow the guidelines below for the best chance of stopping a frivolous trademark application.

Only you can decide if it’s worth your time to follow this checklist. But if you intend to follow-up with a post-publication protest in the event the initial protest is disregarded, I implore you to use this checklist for both protests. It’s only fair to the examiner that you meet the USPTO-recommended standard from the beginning.

What this document covers:

1. Important Facts
2. Terms to Know
3. Evidence Requirements
4. Pre-Publication Letter of Protest
5. Post-Publication Letter of Protest
6. Work Flow Tips
7. What To Do Next
8. If Your LOP is Denied
9. If Your LOP is Accepted
10. DELAY: LOP Reviewed, No Further Action Taken
11. WIN: Failure to Function
12. Special Cases
13. IC 035 Service Marks
14. Descriptive Marks and Phantom Marks
15. Re-Cap
16. Summary Checklist

1. Important Facts

• The best time to submit a Letter of Protest (“LOP”) is the day the application is filed. The next best time is now (for Pre-pub LOPs) or before the opposition deadline (for Post-pub LOPs). Post-pub LOPs take much longer to prepare.
• If 30 days have passed since the application was Published for Opposition (noted on the “Status” page of TSDR), it is too late to file a Letter of Protest.
• You are the linchpin in USPTO’s refusal of questionable trademarks that affect your business. It is your responsibility to inform them of facts specific to your industry that may affect outcomes, and their responsibility to review those facts in light of case law. Don’t sit on your hands and then complain when you don’t like the outcome.
• AMAZON AND ETSY SELLERS: USPTO rules state that more than five protests for a single application will be disregarded. If the application you plan to protest is for goods and services related to print on demand (novelty T-shirts, mugs, PopSockets on Amazon or Etsy), please coordinate your efforts with a group like Trademark Watch Dawgs. They have a system in place for avoiding duplicate protests.
• CLASSES NOTE: These guidelines pertain to applications for trademark registration of terms in physical product or print-on-demand classes such as but not limited to 009, 016, 025. They must be adapted for Amazon FBA, restaurants, hotels, business services, and so on (notes specific to IC 035, online retail services, are included at the end of this series).
• Fake Specimen Reports are an alternative way to share important information with USPTO. If the specimen is a mock-up, a fake specimen report should be submitted (in addition to a Letter of Protest, if appropriate).

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2. Terms to Know

• Frivolous Trademark: potentially overreaching trademark application or registration used to initiate frivolous claims of infringement. These occur in every industry. Examples: STAINLESS STEEL (for garlic presses); ONCE A MARINE, ALWAYS A MARINE (for clothing). “Frivolous Trademark” is a subjective term coined in the Amazon seller communities. Its use in this or other training materials should not be construed to suggest wrongful intent on the part of trademark applicants or owners.
• Pre-pub LOP: Letter of Protest submitted before the application is Published for Opposition. These are easiest and take about 15–30 minutes. It’s best to submit a pre-pub LOP within 3 months of the application filing date before the Examining Attorney is assigned. (Earlier is better!)
• Post-pub LOP: Letter of Protest done after the application is Published for Opposition. Must be submitted within 30 days of the publication date. It’s best to submit 75 pages of evidence plus an index. These take 2–10 days, probably less if you’re not dealing with brain fog and insomnia. Guaranteed to fail without a “slam dunk” level of evidence. If you can’t find evidence that fits the checklist in this post, you’re probably wasting your time.
• Legal Basis: the reason — based on the Trademark Act and case law — the trademark application should be refused. The most likely Legal Basis for refusing applications related to novelty goods is: “Failure to Function — Merely Informational and Widely Used Expression. See TMEP 1202.04 and 1202.04(b).” (“Merely Ornamental” is a determination that the Examining Attorney is expected to consider on their own. If you raise this objection — even as a secondary basis — your Letter of Protest will likely be refused. Similarly, I’m aware of one protest based on “Merely Descriptive” that succeeded and one time an examiner cited this basis independently.) Note: The Letter of Protest procedure is designed for us to alert USPTO to applications that should obviously be refused. It is not for raising issues of fraud or potential overreach. These require litigation to solve, either via TTAB or a federal suit.
• Evidence: information to support whether a belief is true or valid. When it comes to protesting questionable trademarks, your opinion and the applicant’s past actions are irrelevant. For Letters of Protest against terms that affect novelty goods, “evidence” of “widespread use” (see Legal Basis) means showing the term is already used to decorate a wide variety of goods, across a wide variety of platforms.
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3. Evidence Requirements

The following requirements apply to both Pre-pub and Post-Pub Letters of Protest:

• No personally identifying data (your name, address, etc.) is allowed. Only the evidence becomes part of the public record. Your Letter of Protest form submission and identity are unknown to the applicant unless you publish it elsewhere. Threats by applicants that they will sue those who file a Letter of Protest are impossible to carry out. The Letter of Protest system is carefully designed to provide USPTO examiners with anonymous, objective evidence to help them make impartial, accurate assessments of registrability.
• The remaining requirements in this list assume you are filing a Letter of Protest against a term that is widely used to decorate novelty goods.
• Evidence of widespread use means showing the term on as wide a variety of goods as possible. The more places people see it as a slogan or decoration, the less likely they are to associate it with a specific brand:
  • T-shirts, tanks, hoodies
  • socks, leggings
  • mugs and drinkware
  • tote bags, backpacks, makeup bags
  • SVG files
  • jewelry
  • pens or pencils
  • journals
• Print or screenshot of individual product pages (including URL and date). Google/Amazon/Etsy search results are not admissible at the Trademark Trial and Appeal Board. These may be disregarded by the Examining Attorney even if allowed by the Attorney Advisor who accepted a Pre-Publication Letter of Protest.
• Product graphics should display a term/design that looks or sounds the same as the one on the application. Sometimes variations are acceptable, but only before the application has been “Published for Opposition.” An “exact match” may be text-only, or a graphic that communicates the same thing and sounds the same if spoken. Examples:
  • “I ♥ DC” = “I LOVE DC” = “I LUV DC” since some people will read the heart graphic as “LOVE” and the alternate spelling “LUV” sounds the same.
  • taco graphic + “Tuesday” = “Taco Tuesday”
• Auto-generating product sites are not allowed. Products sold on CafePress, Teespring, Zazzle, and other sites that allow users to generate designs based on text input are not admissible to support use in commerce and are therefore not allowed.
• Evidence of Admissibility is needed for some sites:
• Evidence from artist platforms (Redbubble, Society6, Designbyhumans) and independent online retail stores that lack a strong US-box-store presence should include the “About” or “Locations” page to support admissibility. List the About/Locations pages and relevant excerpts on your index. (You must show that artists upload their designs rather than auto-generating them.)
• The Source URL and Date of capture must appear on every page.
• See below for WorkFlow Tips.
• Remove active hyperlinks. (Here’s a post about how to remove hyperlinks.)
• Post-publication LOPs must include an Index of Evidence. An index is recommended for all LOPs to boost the chances of your protest being accepted by the Attorney Advisor. Use it to explain the point of each page of evidence succinctly. See WorkFlow Tips for time-savers.
• If the store brand is not immediately recognizable in the USA, include the “About” or “Locations” page to boost store credibility. Include relevant quotes from the About/Locations pages on your index (e.g. “artists upload designs, you find art”).*
• Foreign websites must have an English version; if so they “may” be admissible. Include the About/Locations page from foreign websites to support credibility.

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4. Pre-Publication Letter of Protest

(Post-Pub LOP) Checklist: Evidence must be “relevant and reasonable”: i.e. show enough relevant products that a reasonable person would conclude the application should be refused.

Include a maximum of 15–25 pages (not counting the optional Index):

• 1–3 products from brick-and-mortar stores — Walmart, Target, Home Depot, Bloomingdales, Macy’s, Nordstrom, Old Navy, etc. (Box store evidence is considered the strongest evidence of widespread use).
• Pro Tip: Search “store+term+shirt” for every box store you can think of that might carry a relevant product, e.g. “nordstorm mama bear shirt”. This will bring up products that are available but not advertised. Try it with and without “shirt/mug/tote/jewelry/journal/pencil” endings.
• 5–8 individual product pages from Amazon (shirts, mugs, jewelry, bags, pens, pencils, journals, etc.) (one product per page)
• 5–8 individual product pages from Etsy (shirts, mugs, jewelry, bags, pens, pencils, journals, etc.) (one product per page)
• 5–8 individual product pages from Redbubble, Society6, DesignbyHumans, Wayfair, or similar art distributors (shirts, mugs, jewelry, bags, pens, pencils, journals, etc.) (one product per page)
• About pages from Redbubble, etc., showing that artists must upload their completed designs. List these pages and quote excerpts explaining how the platform works in your Index. Otherwise, USPTO may reject evidence from these sites due to wrongly associating them with CafePress, Teespring, Zazzle, etc. — sites that auto-generate designs based on customer text input.
• Dictionary or Wiki articles, blog posts or “Know Your Meme” article (if appropriate)

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5. Post-Publication Letter of Protest

(Post-Pub LOP) Checklist: Evidence must show a clear error was made. USPTO recommends all allowed 75 pages of evidence be used, and an index provided. (The index does not count towards the 75-page limit).

I. Index

A post-publication trademark Letter of Protest should include an index of the evidence. This index is not counted toward the page limit of the protest. See the Trademark Letter of Protest Samples post for examples.

II. Evidence of Widespread Use — Products

• Follow the Pre-Pub LOP search tips and evidence guidelines
• Brick-and-mortar stores (15–20 products recommended; include “About” or “Locations” pages from stores that are not immediately recognizable)
• Amazon (15–20 products recommended)
• Etsy (15–20 products recommended)
• Redbubble (15–20, only fill these slots to supplement evidence that is lacking from brick-and-mortar, Amazon, and Etsy; include the “About” page as noted above)
• Total: 65–70 product pages

III. Evidence of meaning and widespread cultural use

• Wikipedia, UrbanDictionary, KnowYourMeme, etc. (Wikipedia articles should be corroborated with additional original source articles cited in the Wikipedia footnotes.)
• Social media (hashtags, Facebook groups, and Facebook pages)
• Blog or media posts
• YouTube
• Total: 5-10 pages

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6. WorkFlow Tips

Here are some tips that have helped me and others.

A. See the (Simpler) Big Picture

Review Dave Cadoff’s amazing post here As noted above, the “search results” method outlined in Dave’s post is often successful (assuming the majority of products in search results display the proposed trademark as a T-shirt slogan). This Evidence Requirements and Checklist is for applications that will affect profitable products you own (or affect enough others that you are willing to invest the time required).

B. Index as You Go

Use Google or your favorite word/spreadsheet tool to prepare an Index of Evidence. List these facts: brand, title, features and descriptions (excerpts), URL. Develop this document while gathering evidence (copy and paste as you go).

C. Auto-index via Airtable

This Airtable LOP Template can be copied and edited by you to auto-create a printable index after it is completed. See the “Read Me” table in it for step-by-step instructions (incomplete). It is designed for post-publication Letters of Protest. Sample evidence and the instructions guide you or your VA to collect compelling evidence. Since it’s in Beta, please use this link each time to get the most up-to-date version.

D. URL Tips

• To include the date & source URL, use Fireshot (Chrome extension) to print the full page, then select “Print” from the Fireshot options. If the URL doesn’t print on your page automatically, open the PDF and select Tools>Annotate>Text, then copy and paste the URL, and go a few spaces before typing the date. Next, print the document as a PDF to “freeze” the URL text size. Otherwise, it may transform to bleed off the page enough to render the evidence inadmissible on upload to USPTO.
• Shorten the URL by deleting the ad tracking code section: for Amazon ads following the asin, e.g. “…B98370682/? blahblahblah” delete the “?” and everything following it. Experiment to be sure the shortened link still works.

E. Get a Variety

Regardless of the class in which registration is being sought (e.g. 009, 016, 025), try to provide shirts, mugs, jewelry, bags, pens, pencils… a wide variety of novelty items.

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7. What To Do Next

While rare, there are times you’ll want or need to contact USPTO after submitting your Letter of Protest. Here’s how to be prepared:

A. Save the receipt.

This official correspondence states your personal contact information will not become part of the public record. It’s helpful to have this handy in case a clerical error is made. (See below).

B. Monitor the Application

Review the application for status changes while you wait on the results of your Protest. You can do this one of two ways:

• Sign up for alerts at USPTO;
• Put a reminder on your phone.
• (If privacy is a concern, check the Documents tab at TSDR daily.)

C. If Your Name Is Published

Yes, rarely (twice that I’m aware of, out of over 100 Letters of Protest filed by various protesters) the original Letter of Protest (including the protestor’s contact information) has erroneously appeared in the public record on TSDR. For a simple fix, do one of the following:

• call the examining attorney (listed on the acceptance letter), and ask to have your contact information hidden
• call USPTO’s mainline (571–272–8950) and ask to speak to the staff attorney on call

I’ve done this once, on behalf of the protester. The receptionist at first thought that if the Letter of Protest had been accepted then everything was part of the public record. I explained this is not the case, based on the Letter of Protest I’d submitted a few days earlier (the receipt’s promise of privacy was fresh on my mind).

The nice lady put me on hold (probably checking with her supervisor to see if I was right), and, once she returned, quickly hid the protestor’s information. I refreshed my screen to confirm it no longer appeared in TSDR. If you get a new hire when you call, this may take up to 15 minutes as it did for me. More likely, it will take 2 minutes or less.

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8. If Your LOP is Denied

Here’s how to make the most of things if your Letter of Protest is denied:

• Read the letter, and try to understand it. You can do this, and will probably gain valuable insight to help you do a better job next time.
• Call the Attorney Advisor (whose name and phone number will be listed on the letter) to ask what you could have done better.
• Share what you learn with others. Please participate in one of the active online communities that exist to fight this cancer in the print on demand industry. See Trademark Resources for more information.

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9. If Your LOP is Accepted

Even if your Letter of Protest is accepted, there are no guarantees. Here’s how to find out if your protest succeeds after you receive your “Letter of Protest Accepted” notification:

Monitor the mark every 7–10 days until the Examining Attorney reviews your evidence. Check the TSDR Status, scroll down, and click on “Prosecution History.” This is where the Examining Attorney’s response to your Letter of Protest will be recorded.

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10. DELAY: LOP Reviewed, No Further Action Taken

If the Examining Attorney is not persuaded by your evidence, this text will appear in the Prosecution History:

LETTER OF PROTEST EVIDENCE REVIEWED-NO FURTHER ACTION TAKEN

Don’t panic yet. Here’s what to do instead:

• Gather evidence for a Post-Pub protest, following the guidelines above.
• Continue monitoring the application at TSDR until the Publication Date is announced. This date can be rescheduled by USPTO without notice. Maintain regular monitoring until the application is Published for Opposition.
• Find a Friend: Once the application is Published for Opposition, find a friend to submit a Post-Publication Letter of Protest. USPTO will likely reject it if it comes from you. (The idea is, you had your chance to persuade the examining attorney, so a second protest by the same person is considered harassment.)
• File an Opposition (optional): For $100 you may also file an Opposition to the application with the Trademark Trial and Appeal Board once the application is Published for Opposition. This keeps the door open for further proceedings to delay and potentially stop registration, avoiding a costlier legal battle later.

Here’s what not to do:

Don’t waste time submitting a second pre-publication LOP (after the application is approved for publication but before the publication date).

An examining attorney not persuaded by the Pre-publication Protest evidence listed above is unlikely to change their mind. In this case, we WANT the application to be published for opposition, so the Commissioner of Trademarks can require a refusal if they agree your evidence shows a clear error was made.

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11. WIN: Failure to Function

If the Examining Attorney deems your evidence sufficient to support a refusal, here’s what will show up in the Prosecution History (remember, this is on the Status Page at TSDR):

NON-FINAL ACTION WRITTEN.

To be certain this refers to a refusal based on your Letter of Protest, click on “Documents”. Look for an “Administrative Response” dated near the time of your acceptance letter, and click on that. It should reveal a memo to the Examining Attorney informing them a Letter of Protest was filed and providing the evidence deemed acceptable for their consideration.

The Examining Attorney’s refusal letter will be dated soon thereafter, and is listed in the Documents as “Offc Action Outgoing.” This document should include a paragraph that begins with something similar to:

REFUSAL—FAILURE TO FUNCTION

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12. Special Cases

Some applications don’t fit these guidelines:

• Terms to be registered in IC 035 (online retail services) for online retail stores that plan to sell T-shirts, socks, and other products often used as the “canvas” for popular expressions.
• “Descriptive marks” — there are two types: 1) terms that describe the intended user; 2) terms that describe an entire niche or style, yet are rarely found alone in an ornamental design (e.g. “CLASSY”)
• “Pseudo-phantom marks” — terms used in longer expressions with variable endings (e.g. “THIS GUY”, “BORN IN”)

Each of these presents special challenges to the Letter of Protest process.

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13. IC 035 Service Marks

You need to know something when it comes to presenting evidence for a protest against an application in Class 035: different folks have different opinions as to what evidence is relevant. 

Some attorneys say the evidence must show the term in other store names and advertisements. Others say that widespread use on T-shirts, hats, and other products are relevant. To be on the safe side, I recommend you include both types. 

See my LOP Examples: Class 035 and LOP Examples: Class 035 (Update) posts for more information and links to sample evidence. 

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14. Descriptive and Pseudo-Phantom Marks

Let’s talk about two USPTO terms that could hold a key someday to closing up loopholes in the current US trademark system: Merely Descriptive Marks and Pseudo-Phantom Marks.

A. Merely Descriptive Marks (But Not Really)

When I first read about descriptive marks, I thought I’d discovered the Holy Grail of stopping questionable trademarks. Here is USPTO’s summary of the Descriptiveness doctrine:

The major reasons for not protecting such marks are: (1) to prevent the owner of a mark from inhibiting competition in the sale of particular goods; and (2) to maintain freedom of the public to use the language involved, thus avoiding the possibility of harassing infringement suits by the registrant against others who use the mark when advertising or describing their own products.

TMEP 1209 Refusal on Basis of Descriptiveness

This is exactly the growing problem faced by sellers in the print-on-demand industry. Someone “coins” a clever T-shirt slogan, then registers it as a trademark. Competitors who want to create alternative designs for the expression are thus stopped or face frivolous IP infringement claims. Such terms are also valuable marketing terms for related products.

B. Descriptiveness DEFINITIONS

The sad truth is, what marketers in the print-on-demand industry recognize as descriptive terms for their products are not recognized by case law as descriptive terms.

For example, product feature bullets or descriptions on Amazon or Etsy may say “Looking for a great gift for your Funcle? This unique Uncle Ninja shirt will be worn with pride.” (In this hypothetical example, the “Uncle Ninja” keyword is supplemented with “Funcle” to capitalize on searches for a trending design. “Funcle” and “Uncle Ninja” products share the same target audience: buyers of goods for uncles.)

But if you sell novelty T-shirts, the law mostly says your “goods” are the shirts, irrespective of any design on them. (There’s one exception, but it’s hidden deep in the Trademark Manual for Examining Procedures, so most examining attorneys will miss it.) So for a term to qualify as being descriptive, it must describe some quality of the fabric or fit of the shirts you sell. This narrow definition ignores the practical aspects of how consumers search for such products, and how sellers market their novelty goods

See my Trademark Beach Story Saga for more on this, especially Part 08f: LOP Challenges: Arguments Definition and Part 09a: AFFIRMATIONS Case Study.

C. Why the Descriptiveness Definition Matters

For most frivolous marks, this doesn’t matter because the term is used “as is” to decorate goods. In such cases, evidence of widespread use is often easy to come by. Submit it, and a “Failure to Function — Widely Used Message” refusal is likely. But some proposed marks describe the intended user, niche, or core idea behind a phrase rather than a specific design:

• AFFIRMATIONS
• BEARDIFUL
• BULL DOG
• UNICORN
• YAYA

D. Descriptive Trademarks: A Widely-Used Tactic

This tactic is not limited to T-shirts. It’s been tried in other classes (STAINLESS STEEL for garlic presses, for example). But as of this writing, there is no known effective way to oppose such marks before registration. (See the AFFIRMATIONS Case Study post for more.)

E. When a Descriptiveness Legal Basis Might Be Worth a Shot

IF the term is descriptive of an entire niche or style (e.g. “AFFIRMATIONS” or “COCKY”), find products that feature that word in the brand, title, and/or features/ description. Less is more here: shorter titles, single bullet points.

Quote relevant excerpts from each product page in the Index of Evidence.

For “Legal Basis”, use the paragraph box only to list “Failure to Function – Merely Informational, See TMEP §1202.04 and/or Merely Descriptive, see TMEP §1209. Term is widely used in the marketplace by competitors to describe and advertise similar products.”

(NOTE: A descriptive basis will likely be denied. Case law examples to support such an interpretation/application to print-on-demand products are obscure. See Part 6a of my Trademark System Bias series for more about descriptiveness.

Letter of Protest Limitations

The Letter of Protest system is great for its purpose: to alert the examining attorneys of terms that obviously fail to function as trademarks. For most terms that one might think of as “merely descriptive” for a niche of novelty goods, the only course of action available in 2019 is to wait and see. If the term is registered and the owner initiates frivolous IP infringement claims, victims can choose to cave or file a lawsuit to stop such harassment.

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B. Pseudo-Phantom Trademark

What is a “pseudo-phantom trademark”? It’s a step beyond a phantom trademark: 

In some applications, the applicant seeks to register a “phantom” element (i.e., a word, alpha-numeric designation, or other component that is subject to change) as part of a mark. The applicant represents the changeable or “phantom” element by inserting a blank, or by using dots, dashes, underlining, or a designation such as “XXXX.” (TMEP 1214 “Phantom” Elements in Marks)

A pseudo-phantom trademark is a multi-word expression that omits a variable word or another component. In other words, it’s exactly like a trademark with a phantom element, only the phantom element is never disclosed. 

Similar to descriptive terms (user-identifiers), pseudo-phantom terms never appear alone on products or in their descriptions. 

Here are examples: 

• THIS GUY (loves his wife, loves coffee, runs fast, etc.)
• BORN IN (1960, 1970, etc.)

If you protest an application for a phantom mark, your protest is unlikely to be accepted.. 

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15. Re-Cap

The standard outlined in this document is:

• required for Letters of Protest filed against applications that have been Published for Opposition

• best practice for Letters of Protest filed against new applications.

Since the evidence standard is looser for pre-pub LOPs than for post-pub LOPs (“relevant and reasonable” vs. “clear error”), it’s not uncommon for a less-robust LOP to be accepted by an Attorney Advisor, but ignored by the Examining Attorney. That’s because the Examining Attorney may have to defend their decision before TTAB if their decision is appealed by the applicant.

Remember, search result pages are not admissible at the Trademark Trial and Appeal Board. (TTAB is where the dispute ends up if the applicant appeals an Examining Attorney’s refusal of their application for trademark registration.) Goal: evidence that supports a refusal at a glance. Often there are derivative expressions all mixed together on a Search Results page (“Resting Beach Face,” “Resting Witch Face,” etc.). From USPTO’s perspective, pages showing mixed results for a search term are of LITTLE VALUE.

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16. Summary Checklist

• Use Incognito mode to avoid personally identifying info on pages.
• Collect individual product pages showing an EXACT match.
• List Source URL & Date Printed on every page.
• Include the “About” page from Redbubble, Society6, Wayfair, etc., showing that artists must upload completed designs. CafePress, Teespring, Zazzle, and other sites that allow users to generate designs based on text input are not allowed.
• Merge product pages into one document for each platform for easy upload. (PDF max size is 30MB). Include an Index listing brands, titles, relevant excerpts from product descriptions.
• Include an index of evidence if filing a post-publication Letter of Protest
• Do not add unnecessary words that might be construed as a legal argument; reference the Legal Basis in as few words as possible

Proofread PDFs before uploading:

• URL and capture date on each page
• One product per page (may span multiple pages)
• Each product shows exact match of the term
• Duplicate content culled out
• Protester’s personal data obscured
• Hyperlinks removed
• Merge documents to simplify uploading
• PDF size under 30MB
• Pre-pub LOP: 15–25 pages total (box stores, Amazon, Etsy, online retailers)
• Post-pub LOP: Index + 75 pages (60–70 pp products + definitions, memes, articles, social)

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FOR GEEKS ONLY, HERE ARE SALIENT QUOTES AND THE LINK TO THE USPTO ARTICLE DETAILING EVIDENCE REQUIREMENTS: Source Article: 710.01(b) Internet Evidence

Articles downloaded from the Internet are admissible as evidence … However, the weight given to this evidence must be carefully evaluated, because the source may be unknown. … the examining attorney must both (1) provide complete information as to the date the evidence was published or accessed from the Internet, and its source (e.g. , the complete URL address of the website). A list of Internet search results generally has little probative value, because such a list does not show the context in which the term is used on the listed web pages. … [The court rejected] an applicant’s attempt to show weakness of a term in a mark through citation to a large number of Google® “hits” because the “hits” lacked sufficient context) … [and found] the print-out of Internet search results to be of little probative value due to insufficient text to determine the nature of the information or its relevance); “[e]vidence of actual use of a phrase by a website has far greater probative value” than a search summary). The examining attorney should attach copies of the website pages that show how the term is actually used. [Re:] foreign websites (written in the English language…) may be relevant to discern United States consumer impression of a proposed mark. With respect to evidence taken from the online Wikipedia® encyclopedia, at www.wikipedia.org, the Board has … stated as follows: …Our consideration of Wikipedia evidence is with the recognition of the limitations inherent with Wikipedia (e.g., that anyone can edit it and submit intentionally false or erroneous information)…. The better practice with respect to Wikipedia evidence is to corroborate the information with other reliable sources, including Wikipedia’s sources. The examining attorney should check applicant’s own website for information about the goods/services. When a document found on the Internet is not the original publication, the examining attorney or Trademark Law Library staff should try to obtain a copy of the originally published document, if practicable.