904.03(m) Specimens for Scent and Flavor Marks or Similar Non-traditional Marks
For an application under §1(a), as well as a response, statement of use/amendment to allege use, petition, or registration maintenance/renewal filing in which a specimen for a scent, flavor, or similar non-traditional mark is being submitted, the applicant must mail the scented or flavored goods to the USPTO. 37 C.F.R. §2.56(d)(1). A specimen for these types of non-traditional marks may not be submitted electronically. See 37 C.F.R. §2.23(a); TMEP §§301.01, 301.02(d).
To show that the specimen for a scent or flavor mark actually identifies and distinguishes the goods and indicates their source, an applicant must submit a specimen that contains the actual scent or flavor and that matches the required description of the scent or flavor. In most cases, the specimen will consist of the actual goods themselves because the examining attorney must be able to smell or taste the scent or flavor to determine whether the specimen shows use of the mark in connection with the goods.
A "scratch and sniff" sticker for a scent mark is an acceptable specimen, provided that it is part of the packaging for the goods or is used in such a manner as to identify the goods and indicate their source.
To submit a specimen for a non-traditional mark, applicants must first submit information about the specimen online using the appropriate TEAS form and then mail in the physical specimen following the guidance in TMEP §305. The TEAS forms have a checkbox on the Use Information page that must be selected to indicate that a specimen for a non-traditional mark will be submitted by mail. In these circumstances, the applicant or registrant is not required to submit a petition under 37 C.F.R. §2.147 requesting acceptance of a specimen filed on paper or waiver of the requirement to file the specimen electronically. See 37 C.F.R. §2.56(d)(1).
This exception does not apply to sound, motion, and color marks, because electronically filed specimens are sufficient to determine their registrability. Applicants are required to submit specimens for these marks electronically. See TMEP §904.03(f), (l).
See also TMEP §807.09 and §1202.13 regarding scent and flavor marks.