TTAB Says Clinical Trial Label Sufficient Specimen For Registration

On June 18, 2015, in a non-precedential opinion, the TTAB overturned the USPTO's refusal of registration of Eli Lilly and Co.'s application for the word mark TRULICITY for diabetes treatment based upon alleged failures in the specimens submitted.

During the registration process, Eli Lilly submitted as a specimen the label applied to goods distributed in clinical trials, as follows.

The crucial wording on the label was:

Carton contains 5 syringes. Syringe contains a 0.5mL solution for injection of Trulicity" (dulaglutide) or placebo.

The Examining Attorney objected to the specimen contending that the mark set forth in the application was not a "substantially exact representation of the mark on the specimen" and therefore did not provide evidence of use of the mark in connection with Eli Lilly's goods. In support of this position, the Examining Attorney argued that the term: (1) appeared as part of a sentence; (2) was represented in the same size and font