Hitachi appreciates the opportunity to provide comments on the draft Examination Guide on Webpage specimens. In comparison to specimen requirements in most countries around the world, the USPTO specimen criteria are very strict. Many companies offer products and services not only to the general public but also to industrial. Therefore, it would be helpful to include additional information in Examination Guide taking
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Hitachi appreciates the opportunity to provide comments on the draft Examination Guide on Webpage specimens. In comparison to specimen requirements in most countries around the world, the USPTO specimen criteria are very strict. Many companies offer products and services not only to the general public but also to industrial. Therefore, it would be helpful to include additional information in Examination Guide taking this fact into consideration.
The draft guideline indicates that “Where to buy” buttons or contact information without a means of ordering the goods are unacceptable. We believe that “Where to buy” links should be accepted regardless of whether there is a means to order the products or services. In fact, it is not common for companies to display a means to order the products when marketing products available for customization. It is our experience that consumers prefer to talk to a sales person to discuss their needs before placing an order especially if the products are expensive. Any means of contacting a sales team should be acceptable not only a telephone number as specified on page 6 of the draft.
In addition, companies often rely on local distributors to sell in different territories. Companies often list distributors or resellers on their webpage to help direct consumers to authorized channels. Therefore, contacting local distributors from an e-mail address, phone number or online inquiry form through the “Where to Buy” or “Contact Info” link is a means of ordering the product and actually a common industry practice. Consumer can easily order products when corresponding with a local distributor even though the products are not directly purchased on the website. Again, we believe in this day and age any means (i.e., telephone, e-mail, online inquiry form) of contacting a company or its authorized sales channels should be sufficient.
The draft guideline also indicates that a telephone number or e-mail address may not be adequate if it appears as applicant’s corporate contact information. Many companies display general corporate phone numbers or e-mail addresses for the consumer’s convenience. A main contact number or e-mail address is a quick way to contact the company and be directed to the correct department. There are many third parties which hold themselves out to be affiliated with a company. By contacting a company’s general phone number or e-mail address, the consumer is assured they will be directed appropriately instead of unauthorized party. It is easier for customers to dial a main line or send an e-mail to a general e-mail address where they can subsequently be directed to where they want to go. Therefore, any means of contact (e.g., phone number, e-mail address) should be sufficient.
Finally, as followed by most countries, advertising materials should be considered trademark use for goods and not just services. Advertising materials are not just offers to sell products but are similar to website displays which provide a means to place an order. Advertising materials are often presented with contact information which would allow consumers to contact a seller to place an order. At the very least, we believe the option to submit multiple documents such as catalogs, webpages and marketing collateral should be allowed to demonstrate as a whole “use of the mark in commerce” on goods. The current criteria for specimen of use creates a paradox that use of a mark on advertising materials, such as product catalogs would not be an acceptable specimen even though such use can constitute trademark infringement.
We think it would be helpful to include additional information to the specimen guidelines especially concerning acceptable specimens from applicants that market to industrial consumers.
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