CAN YOU PICTURE THIS? / SPECIMENS OF USE NEED NOT/ INCLUDE A PHOTO

In Re Michael Sones, [2009-1140 (Serial No. 78/717,427)](December 23, 2009)[ LINN, Newman, Rader] The Federal Circuit reversed theTTAB, which affirmed the Examiner’s rejection of internet specimens which did not necessarily have to include a photograph of the goods.
DISCUSSION: The Federal Circuit held that a picture is not a mandatory requirement for a website-based specimen of use, and that the test for an acceptable website-based specimen, just as any other specimen, is simply that it must in some way evince that the mark is “associated” with the goods and serves as an indicator of source.. The Court said that precedentestablishes that a visual depiction of a product is an important consideration in determining whether a submitted specimen sufficiently associates a mark with the source of the goods. It might well be that the absence of a picture will render website specimens ineffective in many cases and will be, as the PTO argues, “[a] crucial factor in the court’s analysis.” But a picture is not the only way to show an association between a mark and the goods, and we cannot approve of the rigid, bright-line rule that the PTO applied here.