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Proper Trademark Use for Online Retailers with Web Page Display

By Carl M. Davis

The Internet has seen a significant increase in the use of web sites for sale of goods and services. The comprehensive “Top 500 Guide” published June 2008 by Internet Retailer ( stated that in 2007, business-to-consumer e-commerce grew nearly six times faster than total retail store and catalog sales.  As one example, web sales for Staples, Inc. represented 29 percent of its total sales in 2007 but made up 58 percent of annual growth.

As a consequence, proper trademark use by businesses selling goods on web sites is becoming more important.  While “use” typically is supported in an application for registration by a specimen showing the trademark on the goods or containers, a promotional display closely associated with the sale of the goods may be accepted as a specimen of use.  TMEP § 904.06.    “Displays” provide acceptable specimens of use if the display includes a picture of the relevant goods, is sufficiently near the picture of the goods to associate the mark with the goods, and includes information necessary to order the goods.  Generally, folders and brochures that describe goods or serve as advertising literature are not per se “displays.”  In re Schiapparelli Searle, 26 USPQ2d 1520 (TTAB 1993).

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