Trademark Examination Guides, Notes and Announcements - Examination Guide 1-91

Examination Guide 1-91

U.S. Patent and Trademark Office

Trademark Examining Operation

Examination Guide No. 1-91

Supplemental Guidelines Concerning the Trademark Law Revision Act of 1988 and Other Areas

Issued March 28, 1991

 

Contents

A. Intent-to-Use Applications

1. Lost Specimens

2. Approval of the Amendment to Allege Use - the Identification of Goods and

Services

3. Extension Requests Filed With Statements of Use

B. Provisions Affecting All Applications

1. Copies of Application Papers and Responses

2. Filing Dates

a. Use of Class Numbers to Identify Goods and Services

b. Defective Filings under <section> 44

3. Verification of Papers

a. Persons Verifying on Behalf of Foreign Applicants

b. Establishing Color of Authority

4. Identifying Partnerships

5. Inquiries Concerning Compliance with Other Laws

6. Drawings

a. Processing Drawings Including Diacritical Marks

b. Material Alteration

c. Fragrance Marks - Drawing/Description

7. Registration of Fragrance Marks

8. Priority for Publication

9. Classification Policy

10. Requests to Divide

a. Order of Processing Division Requests

b. Form of Request

C. Filing on More Than One Basis and Changing the Basis of the Application

1. Applications Filed under <section> 44(d) and Either <section> 1(a ) or

<section> 1(b)

2. Deletion of Erroneous <section> 1(b) Basis

3. Deletion of <section> 1(b) as a Basis for Registration after Publication or

Issuance of the Notice of Allowance

D. Post Registration

 

[p.2]Introduction

The purpose of this examination guide is to provide additional information

concerning policies related to the implementation of the Trademark Law Revision Act

of 1988, Public Law 100-667, and to update or clarify Office policy in other areas.

 

A. Intent-to-Use Applications

 

1. Lost Specimens

If the Office determines that an applicant has not submitted at least one specimen

with either an amendment to allege use or a statement of use, the Office will hold

that the applicant has failed to comply with the minimum requirements specified in

Trademark Rules 2.76(e) and 2.88(e), 37 C.F.R. <section><section> 2.76(e) and

2.88(e). The applications examiner or the Intent-To- Use Unit will notify the

applicant of the defect and will advise the applicant that the Office will not

examine the relevant paper on the merits unless the applicant takes appropriate

action to correct this defect within the relevant time period.

If the applicant wishes to establish that papers met the minimum requirements

because the specimen or specimens were submitted with the papers as filed, the

applicant must do so in a formal petition to the Commissioner. The petition should

include an affidavit, copies of the relevant specimens and any relevant evidence

establishing that the specimens were submitted with the papers as filed. The

Commissioner will consider the petition in the same manner as a petition to

establish entitlement to a filing date for the application itself. If the petition

is granted, the papers will be considered received on the date they were originally

submitted.

 

2. Approval of the Amendment to Allege Use - the Identification of Goods and

Services

As indicated in Examination Guide 3-90, if the amendment to allege use complies

with the requirements specified in Trademark Rule 2.76(b) and (c), 37 C.F.R.

<section><section> 2.76(b) and (c), the examining attorney should approve the

amendment to allege use. Accordingly, the examining attorney should not approve the

amendment to allege use if the applicant has not specified the goods and services as

required by the referenced rule. Under the rule, the goods and services must conform

to the goods and services then specified in the application as discussed in

Examination Guide 3-89 at page 20. Therefore, if the goods and services specified in

the amendment to allege use exceed the scope of the goods and services specified in

the application, the examining attorney should not approve the amendment to allege

use.

 

3. Extension Requests Filed With Statements of Use

An applicant may file a request for an extension of time to file a statement of

use along with a statement of use or after filing the statement of use if within the

time remaining for the filing of the statement of use. Trademark Rule 2.89(e), 37

C.F.R. <section> 2.89(e). If an applicant files an extension request with a

statement of use and the extension request is defective in some respect, the ITU

Unit will denythe request and will advise the applicant of the specific defect.

[p.3]

In such a case, the ITU Unit will forward the file to the examining attorney

provided the statement of use meets the minimum requirements for examination on the

merits. If there is time remaining in the current period within which the applicant

must file a statement of use, the applicant may attempt to perfect the extension

request by filing a substitute request. The examining attorney should retain this

request in the file, but the Office will not examine the request unless the

applicant needs the extension to perfect the statement of use. The fee will not be

refunded.

That is, if the examining attorney is to take any action, other than an examiner's

amendment, the application should referred to the ITU Unit for action on the

substitute extension request. Otherwise, the examining attorney should approve the

statement of use, after an examiner's amendment if necessary, without referring the

extension request to the ITU Unit for formal action.

The same procedure would apply to an extension request filed for the first time

during the examination of the statement of use by the examining attorney, but within

the time remaining for filing the statement of use.

 

B. Provisions Affecting All Applications

 

1. Copies of Application Papers and Responses

The Office prefers but will no longer generally require the submission of original

documents. This policy applies to all papers except: certificates or certified

copies of foreign registrations required under Trademark Act <section> 44, 15 U.S.C.

<section> 1126; and those types of drawings or specimens of use in cases where

originals had previously been required, for example, special-form drawings and

specimens where color must be shown. If an applicant files a copy of the application

or any other paper related to an application or registration, or a copy of a

response, the Office will not require the submission of the original, provide the

copy is legible and otherwise proper.

Effective February 12, 1991, the Office will also allow certain papers to be filed

by facsimile. See the Trademark Official Gazette of February 12, 1991, 1123 TMOG 18.

Note that numerous types of papers cannot be filed by facsimile, for example, all

specimens and drawings, all papers in TTAB proceedings and certified copies of

foreign registrations.

 

2. Filing Dates

a. Use of Class Numbers to Identify Goods and Services

If an applicant identifies the goods and services by indicating the class numbers

only, the applicant must be denied a filing date. This applies whether the applicant

indicates the class number by itself, for example, "9," or "Class 9," or the class

number and other wording which does not identify specific types of goods and

services, for example, "All the Goods in Class 9." If an application which

identifies the goods and services by class number only reaches the examining

attorney, the examining attorney should return the application to the application

section with instructions to cancel the filing date and to return the papers to the

applicant. Note that this policy supersedes all previous statements on this issue

including those stated in Examination Guide 3-89. [p.4]

As stated earlier, the class headings for all classes other than Classes 35 and 42

are acceptable for purposes of receiving a filing date. This policy remains in

effect.

 

b. Defective Filings under <section> 44

If an applicant files under Trademark Act <section> 44, 15 U.S.C. <section> 1126,

and the applicant fails to include either a valid priority claim under <section>

44(d) or a certified copy of a foreign registration under <section> 44(e), the

applicant must be denied a filing date unless the applicant has also asserted either

Trademark Act <section> 1(a) or 1(b) as an additional basis for filing. The

applicant's assertion of the additional basis for registration must be explicit.

If the applicant wishes to assert <section> 1(a) in addition to <section> 44 as

the basis for filing, and the <section> 44 basis for filing is defective, the

application must include a statement of a date of first use in commerce to receive a

filing date.

If the applicant wishes to assert <section> 1(b) in addition to <section> 44 as

the basis for filing, the Office will not presume from the mere inclusion of the

statement of a bona fide intention to use the mark in commerce, which is required of

all <section> 44 applicants, that the application is filed on both bases. The

applicant must supply the averments and submissions related to each basis asserted

stated in Trademark Rule 2.21(a)(5), 37 C.F.R. <section> 2.21(a)(5), and the

applicant must clearly indicate that it is asserting two bases. The applicant may

indicate so either:

 

i. by referring to the relevant statutory sections, for example <section> 1(b) &

44(d) or 15 U.S.C. <section><section> 1051(b) & 1126(e); or

ii. by repeating the statement of a bona fide intention to use the mark in

commerce; or

iii. by referring to an "additional" basis for filing, a "second" basis for

filing, "two" bases for filing or the equivalent.

 

For the purpose of determining entitlement to a filing date or whether two bases

have been asserted, the Office will consider the written application only. The

Office will not consider any material in the drawing or a cover letter or any place

else, other than the written application.

If a <section> 44 basis for filing is asserted, and that basis fails under

Trademark Rule 2.21(a)(5), the Office will deny a filing date unless the applicant

has indicated <section> 1(a) or <section> 1(b) as a second basis for filing as

stated above. If an application where the <section> 44 basis for filing is defective

and no additional basis has been asserted reaches the examining attorney, the

examining attorney should return the application to the application section with

instructions to cancel the filing date and to return the papers to the applicant.

 

3. Verification of Papers

a. Persons Verifying on Behalf of Foreign Applicants

Under revised Trademark Rule 2.21(a)(6), "the applicant" must sign the application

to receive a filing date. In the case of a corporation or association, an officer

must sign. The authority to sign [p.5] cannot be delegated to a nonofficer. See TMEP

<section> 803.9. This requirement applies to all applicants, including foreign

applicants.

In the case of foreign entities which are in the nature of corporations, it can

sometimes be difficult to determine whether the person who signed is an officer.

Significant differences exist between the legal systems of the U.S. and other

countries and in the types of legal entities established and recognized under those

systems. In examining applications filed by foreign entities, the examining attorney

must determine whether the person who signed the application held a position

equivalent to that of an officer in a U.S. corporation to confirm that the proper

person signed the application.

Note that the position must be equivalent. That is, the performance of duties

equivalent to those of an officer, by delegation or otherwise, is insufficient, by

itself, to establish authority to sign. Corporate bylaws establish corporate

officers' positions and grant certain powers to persons holding such positions. In

the case of foreign entities, the position the signer holds must possess equivalent

essential characteristics by its very nature.

TMEP <section> 803.11 discusses some titles commonly employed under foreign legal

systems and indicates whether persons holding such titles should be regarded as

proper persons to sign applications. If the applicant has not indicated the title of

the person signing on behalf of a foreign applicant or if the title indicated is not

one generally recognized as acceptable, the examining attorney must inquire whether

the person who signed holds a position equivalent to that of an officer in a U.S.

corporation. If the person does not, the applicant must establish that the person

who signed possessed at least color of authority to sign to maintain a valid

application, and the applicant must submit a new declaration signed by a proper

person. See Trademark Rule 2.71(c), 37 C.F.R. <section> 2.71(c). Please note that

although the title "manager" is generally acceptable, titles such as, "manager of

patents," suggesting narrowly limited duties are not acceptable as such and require

an inquiry by the examining attorney.

If the applicant indicates in the original application or in response to such an

inquiry that the person who signed holds a position equivalent to that of an officer

in a U.S. corporation, the Office will accept this statement as satisfying any

inquiry with respect to the person's authority to sign. Note again that the mere

delegation of officer-like powers is insufficient.

 

b. Establishing Color of Authority

If the examining attorney must determine whether a person possessed color of

authority under Trademark Rule 2.71(c) to establish the validity of the application

as filed, the applicant must generally provide a factual explanation to establish

that the person had firsthand knowledge of the truth of the statements in the

verification or declaration and actual or implied authority to act on behalf of the

applicant. The statement of mere legal conclusions is not sufficient, particularly

when the person who signed has been identified as the attorney for the applicant and

the person is not an employee of the applicant firm.

Please note that, under Trademark Rule 2.71(c), the applicant must provide a

substitute declaration signed by a proper person to support the application in

addition to establishing that the person who originally signed possessed color of

authority. This declaration should be required in the first office action and must

be submitted prior to publication. [p.6]

Also note that the color-of-authority provision of Trademark Rule 2.71(c) does not

apply to requests for extensions of time to file statements of use. Therefore, an

applicant cannot establish that such a paper is timely filed by showing that the

person who signed had color of authority.

 

4. Identifying Partnerships

If the applicant is a partnership, current Office policy requires that the

applicant indicate the names and citizenship of each general partner as well as the

state or nation where the partnership is organized. This policy also applies to a

partnership which is a general partner in a larger partnership. These requirements

have been unnecessarily burdensome on partnerships including large numbers of

partners, in particular, professional partnerships.

Therefore, in the case of a partnership consisting of ten or more general

partners, if the partnership agreement provides for the continuing existence of the

partnership in the event of the addition or departure of specific partners, the

Office will require that the applicant provide the names and citizenship of the

principal partners only. If the principal partners exceed ten, the applicant need

list only the first ten principal partners. If there is no class of principal

partners, the applicant may list any ten general partners.
 

5. Inquiries Concerning Compliance with Other Laws

Trademark Rule 2.69, 37 C.F.R. <section> 2.69, permits the Office to inquire

concerning compliance with other Federal laws to confirm that the applicant's use of

the mark in commerce is lawful. The Office has routinely made inquiries concerning

compliance with certain federal laws, such as laws governing the labeling of foods,

drugs and cosmetics. See TMEP <section> 901 et seq. The Office will discontinue

making such inquiries on a routine basis.

The examining attorney should only inquire concerning compliance with other

Federal laws or refuse registration based on the absence of lawful use in commerce

when a court or the responsible Federal agency has issued a finding of noncompliance

under the relevant statute or where there has been a per se violation of the

relevant statute. Cf. Kellogg Co. v. New Generation Foods Inc., 6 USPQ2d 2045 (TTAB

1988); Medtrodonic, Inc. v. Pacesetter Systems, Inc., 222 USPQ 80 (TTAB 1984).

For the purpose of determining whether to issue such an inquiry, the Office will

not regard apparent technical violations, such as labeling irregularities on

specimens, as per se violations. For example, if a package fails to show all

required labeling information, the examining attorney should not take any action.

Likewise, the Office will no longer routinely solicit information regarding label

approval under The Federal Alcohol Administration Act or similar acts. Per se

violations necessitating an inquiry or refusal are those where a clear violation of

law, such as the sale or transportation of a controlled substance in violation of

law, is evident in the record.

In pending cases, the examining attorney should not pursue any previous inquiry

further unless the record indicates a per se violation of a substantive nature or a

specific finding of noncompliance as noted above. [p.7]

 

6. Drawings

a. Processing Drawings Including Diacritical Marks

Examination Guide 2-90 liberalized Office policy to permit applicants to present a

mark in typed form, if it is otherwise proper, even if the drawing includes

diacritical marks. However, for the purpose of Office processing, such drawings must

be processed as special- form drawings. Accordingly, examining attorneys and

applications examiners must ensure that such a drawing has been scanned and

otherwise treated as if it were a special-form drawing. The examining attorney

should verify on T-Search that the proper drawing of the mark has been scanned and

entered. If the drawing has not yet been processed as a special-form drawing, the

applications examiner must submit the drawing for scanning according to the same

procedures which would apply to an amended special-form drawing. These drawings

should be classified in Mark Drawing Code 5.

 

b. Material Alteration

Examination Guide 2-89 discusses the circumstances under which the Office will

permit amendments to pending or registered marks. Generally the deletion of matter

from a mark is evaluated according to the same standard as a proposed addition to

the mark. That is, the amendment cannot be permitted if the change to the mark would

constitute a material alteration.

However, if an applicant erroneously displays two or more obviously distinct marks

on the same drawing, the applicant may amend to designate one mark. The applicant

may do so provided third parties viewing the drawing would recognize that the

original drawing erroneously displayed two distinct marks. Even in these cases, if

the area where the mark or marks are displayed is larger than 4 inches x 4 inches,

the applicant must be denied a filing date. Also note that, in general, an applicant

may not amend a drawing to overcome an objection related to the agreement between

the mark in the drawing and the mark as shown on the specimens or foreign

certificate, if the amendment would result in a material alteration. This applies in

the case of mutilations or cases where distinct elements do not form a unitary

commercial impression.

Also, under some circumstances the deletion of nondistinctive matter may not

constitute a material alteration of the mark. For example, the deletion of the

generic name of the goods or services would not generally constitute a material

alteration, unless it was so integrated into the mark that the deletion would alter

the commercial impression. In some circumstances, even descriptive or other types of

nondistinctive matter may be deleted, if the overall commercial impression is not

altered.

c. Fragrance Marks - Drawing/Description

The general subject of fragrance marks is discussed below. This section discusses

the proper form of drawings in such cases. In the case of a fragrance mark, the

drawing page should indicate "NO DRAWING" where the mark would otherwise appear. The

drawing and the application papers should also include a concise description of the

mark. If the applicant has not provided a proper drawingor description, the

examining attorney must require appropriate amendment. The mark should be coded

under Mark Drawing Code 6. This code formerly included only sound marks and will now

include all sensory marks. [p.8]

 

7. Registration of Fragrance Marks

The Board recently permitted publication of a mark consisting of a fragrance

applied to the relevant goods. In re Clarke, 17 USPQ2d 1238 (TTAB 1990).

Specifically, the mark consisted of "a high impact, fresh, floral fragrance

reminiscent of Plumeria blossoms" for "sewing thread and embroidery yarn." The issue

on appeal was whether the subject matter functioned as a mark. The Board held that

the applicant had established that the identified fragrance did function as a mark.

The Board's decision is limited in scope. For instance, the Board states, "[i]t

should be noted that we are not here talking about the registrability of scents or

fragrances of products which are noted for those features, such as perfumes,

colognes or scented household products." Id. at 1239 n.4. Examining attorneys should

note these limitations in examining applications for fragrance marks. Furthermore,

examining attorneys should note that the amount of evidence required to establish

that the subject matter functions as a mark is substantial. Cf. In re Owens-Corning

Fiberglass Corp., 774 F.2d 526, 227 USPQ 417 (Fed. Cir. 1985).

Fragrance marks will be coded in Mark Drawing Code 6 in T- Search. The former

designation of this code for "Sound Marks" only will be revised to designate the

code for "Sensory Marks." The mark drawing code can be searched as a separate field.

Likewise, in the Trademark Search Library, fragrance marks will be filed in the

drawer formerly designated for "Sound Marks" which will be redesignated for "Sensory

Marks."

Any examining attorney assigned to an application for a fragrance mark should

advise the Director's Office of the existence of the application by referring a copy

of the drawing in the case to the attention of the Administrator for Trademark

Policy and Procedure. This will allow us to keep track of the activity in this area.

 

8. Priority for Publication

Trademark Rule 2.83, 37 C.F.R. <section> 2.83, specifies that, among pending

applications, the application with the earliest effective filing date has priority

for publication. This policy applies even if the applicant in the later-filed

application owns a registration for a mark which would be considered a bar to

registration of the earlier-filed application. Therefore, the examining attorney

must suspend action in such a later-filed case, if otherwise proper, until final

disposition of the earlier-filed application.

 

9. Classification Policy

In the last meeting of the Committee of Experts for the International (Nice)

Agreement, a significant inconsistency in the classification of custom manufacturing

services was identified. Due to a difficulty in translation, the English-speaking

countries misconstrued International Class 37 (Construction and Repair) as including

all "construction" activities including the construction of goods. That activity has

come to be identified as "manufacture of [indicate specific items] to the order

and/or specification of others."

However, the term "construction" in French refers only to the construction of

buildings or other edifices. This would include the construction of roads and ship

building as well. Since most of the other countries in the world that do not have

French or English as their primary language translate [p.9] the WIPO Manual from the

original French text, rather than the original English text, the "French"

interpretation of the term "construction" is worldwide except for a few countries,

such as the U.S., the U.K. and Australia.

Consequently, customized manufacturing activity is consistently classified in

International Class 40 (Material Treatment) in the non- English-speaking countries.

The terminology "material treatment" refers to the treatment or processing of

materials. It is not limited to a treatment that alters the very nature of the item,

such as the chemical alteration of the item treated. Thus, for example, the

"manufacture of furniture to the order and/or specification of others" is considered

a treatment of materials and should be classified in International Class 40, rather

than in International Class 37 as has been done by this Office in the past. (The

U.S. classes for this type of service are 103 & 106.)

This change will be incorporated into the new Acceptable Identification of Goods

and Services Manual. It will also be clarified in the new WIPO Manual that will be

issued in January of 1992. Also, at that time, the class heading for International

Class 40 will be changed to read "Treatment of Materials." The Office will begin to

classify the relevant services in accordance with this clarification with respect to

applications filed after the issuance of the new Acceptable Identification of Goods

and Services Manual.

 

10. Requests to Divide

a. Order of Processing Division Requests

Examination Guide 3-89 indicates at page 58 that division requests "will be given

priority in processing over any other paper in the case." There is one exception to

this general rule. If, after issuance of the notice of allowance, the applicant

submits a request for an extension of time at the same time as or before the

division request, and the extension request applies to both resulting applications,

the extension request will be processed first. In those instances where the division

request is seeking to divide out goods or services within a class, this order of

processing will provide the applicant with an extension that applies to both

resulting applications without paying two fees for extension requests.

 

b. Form of Request

Trademark Rule 2.87(c), 37 C.F.R. <section> 2.87(c), provides that requests to

divide "should be made in a separate paper...." This language is not intended to

prohibit division requests by examiner's amendments in appropriate circumstances.

 

C. Filing on More Than One Basis and Changing the Basis of the Application

1. Applications Filed under <section> 44(d) and Either <section> 1(a) or

<section> 1(b)

If an applicant files under both Trademark Act <section> 44(d), 15 U.S.C.

<section> 1126(d) and either Trademark Act <section> 1(a) or <section> 1(b), 15

U.S.C. <section> 1051(a) or (b), the examining attorney must determine whether the

applicant wishes to assert <section> 44(e) as a second basis for registration. If

the applicant wishes to do so, the mark cannot be approved for publication until the

applicant files the foreign certificate. [p.10]

If the applicant files under <section> 44(d), either alone or in combination with

<section> 1(a) or <section> 1(b), the Office presumes that <section> 44(e) is also a

basis for registration. In such a case, the applicant may elect not to complete the

<section> 44(e) basis for registration. If the applicant elects to proceed without

completing the <section> 44(e) basis for registration, the applicant may retain the

priority claim under <section> 44(d). The mark will publish as a <section> 1(a) or

<section> 1(b) case, as appropriate. The applicant cannot reinsert the <section>

44(e) basis for registration after publication. Cf. Goodway Corp. v. Intl.

Marketing Group, Inc., 15 USPQ2d 1749 (TTAB 1990); Societe Des Produits Marnier

Lapostolle v. Distillerie Moccia S.R.L., 10 USPQ2d 1241 (TTAB 1989).

Thus, in any such case, the examining attorney should inquire as to the

applicant's wishes with respect to the possible <section> 44(e) basis for

registration before suspending to await receipt of the foreign registration. Such an

inquiry should be made in the first action in the case.

See B.2.b. above for a discussion of the proper assertion of two bases and

determinations concerning filing dates in such cases.

 

2. Deletion of Erroneous <section> 1(b) Basis

We have noted that some cases incorrectly include a <section> 1(b) basis for

registration in the TRAM system. This error apparently occurs most often in the

initial coding of the data and most often in cases filed under <section> 44 only. In

such cases, box 17 on the front of the file will usually indicate "Section 1(b)."

When approving a mark for publication, the examining attorney should check this box.

If it indicates "Section 1(b)," and <section> 1(b) is not the correct basis,

instruct the applications examiner to correct TRAM. The case must be brought to the

TRAM Unit to do this correction. If it is not corrected, a notice of allowance will

be issued instead of a registration.

If the Office erroneously coded an application as a <section> 1(b) case when, in

fact, it was not, and a notice of allowance issued in error as a result, the

applicant may call the ITU Unit to remedy this error.

 

3. Deletion of <section> 1(b) as a Basis for Registration after Publication or

Issuance of the Notice of Allowance

If an applicant asserts both Trademark Act <section> 1(b) and <section> 44(e), 15

U.S.C. <section> 1051(b) and <section> 1126(e), as bases for registration, the

Office will publish the mark for opposition and will issue a notice of allowance

provided there is no successful opposition. The applicant may delete the <section>

1(b) basis at any point. If the applicant wishes to do so after publication, the

applicant may do so by submitting an amendment requesting the deletion in writing or

by telephoning the examining attorney to do so by an examiner's amendment.

If the applicant submits such an amendment in writing, the examining attorney

should initial approval of the amendment and forward the amendment to the ITU Unit

for processing. If the applicant telephones to enter such an amendment, the

examining attorney should prepare, but not mail, an examiner's amendment to that

effect. The examining attorney does not need the case file to prepare or approve the

amendment. The amendment should then be brought to the ITU Unit which will mail the

amendment. In either case, the ITU Unit will then take the necessary steps to delete

the <section> 1(b) basis and effect the issuance of the registration, if

appropriate. [p.11]

 

D. Post Registration

Affidavits under <section> 8

Trademark Act <section> 8, 15 U.S.C. <section> 1058, as amended, requires, among

other things, that the registrant specify the goods and services in the affidavit of

continued use. If a registrant wishes to incorporate the goods and services

specified in the registration by reference in an affidavit of use under <section> 8,

the registrant must so specify clearly in the body of the affidavit. Reference to

the specimen, or any similar reference which does not explicitly refer to the goods

and services identified in the registration, is insufficient. Registrants should

also note that the Act, as amended, also requires the submission of a specimen for

each class of goods and services in conjunction with an affidavit under <section> 8.

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