CHONUT Sandwich Specimen is Delicious...But Will Be Rejected

On May 30th, an individual in New Jersey filed a federal trademark application for CHONUT. The applicant filed the application on a 1(a) basis in Class 030 for "[h]amburger sandwiches." According to the application, he has been using the term since February 2015.

All is good so far, until the applicant's specimen is examined (see above). While this may be a literal "specimen" of the sandwich, this is not the specimen the Trademark Office needs to register a trademark.

A specimen, for Trademark Office purposes, shows the manner in which a mark is seen by the public. TMEP 904. For goods, labels and tags, stampings, and commercial packaging showing the mark are all acceptable specimens. See TMEP 904.03(a)-(c). Websites can also be good specimens so long as the identified goods are displayed in close conjunction with the mark and there is a means for ordering the goods. TMEP 904.03(i).

Unfortunately for this applicant, his "specimen" shows the goods, not the mark. Fortunately for the applicant, the Trademark Office will give him an opportunity to fix the deficient specimen. To save his application (and filing fee), the applicant will need to submit a substitute specimen that shows the mark being used in commerce in conjunction with the goods. The substitute specimen must also have been in use in commerce at least as early as the filing date (in other words, he can't create a new specimen now).

On another note - the specimen was described as a "barbecue sandwich on a donut." Would that be good?