By KG Shreyas Thimmaiah - Own work, CC BY-SA 4.0,

USPTO Increases Trademark Proof-of-Use Audits

Cracks down on unused trademarks;
More audits coming

The US Patent and Trademark Office (USPTO) is cracking down on unused registered trademarks.

Unused marks “clutter up” the trademark registry and make many potentially valuable marks unavailable for others to use.

In a 2012 pilot audit program, the USPTO found that 51% of the audited registrations couldn’t verify previously claimed use.

The USPTO requires trademark owners to show use of their marks by providing one specimen of use per class at six years and ten years after the initial registration date.

In 2017, the USPTO introduced a Post Registration Proof of Use Audit Program. Audits will now be doubled to 5,000 per year.

A trademark registration can be audited if:

  • The owner filed a six-year or ten-year declaration of use for the mark, and

  • The registration covers at least:

    • One class with four or more goods or services each, OR

    • Two classes with two or more goods or services each.

Trademark owners or their trademark attorneys will get notified if the marks have been selected for an audit. If this happens, the mark owner will be required to provide additional proof of use of the marks, such as:

  • Information

  • Exhibits

  • Affidavits or declarations

  • Additional specimens

Acceptable proof of use specimens can include:

  • Photos of the marks used on a tag or label attached to the products

  • Photos of packaging for the products, if the products are visible through the packaging

  • Photos of the marks used on retail store or restaurant signs

  • Screenshots of websites on which the products or services are sold

If the owner fails to respond to the audit notice, or if the additional proof of use is considered insufficient by the USPTO, the mark(s) will be cancelled.

The USPTO has also proposed fees of $100 each for each good or service deleted for failing the audit.

More information is available here.

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