Effective February 17, 2017, the USPTO is amending its rules concerning the examination of affidavits or declarations of continued use or excusable nonuse filed under Section 8 or Section 71 of the Trademark Act. Under the new rule, the USPTO may require additional information to verify that a mark is in use in commerce in connection with particular goods/services identified in the registration, unless excusable nonuse is claimed. [See Federal Register announcement of January 19, 2017 (here)].

In order to assess and promote the accuracy and integrity of the Trademark Register, the United States Patent and Trademark Office (USPTO or Office) amends its rules concerning the examination of affidavits or declarations of continued use or excusable nonuse filed pursuant to section 8 of the Trademark Act, or affidavits or declarations of use in commerce or excusable nonuse filed pursuant to section 71 of the Act. Specifically, under the regulations enacted herein, the USPTO may require the submission of information, exhibits, affidavits or declarations, and such additional specimens of use as may be reasonably necessary for the USPTO to ensure that the register accurately reflects marks that are in use in commerce in the United States for all the goods/services identified in the registrations, unless excusable nonuse is claimed in whole or in part. A register that does not accurately reflect marks in use in commerce in the United States for the goods/services identified in registrations imposes costs and burdens on the public. The amended rules will allow the USPTO to require additional proof of use to verify the accuracy of claims that a trademark is in use in commerce in connection with particular goods/services identified in the registration.

In a two-year study conducted by the USTPO, the owners of approximately 50% the 500 randomly-chosen registrations in which Section 8 or 71 declarations had been filed, were unable to verify that the involved marks were still in use on the identified goods/services.