37 CFR 2.161
Requirements for a complete affidavit or declaration of continued use or excusable nonuse.
This document contains one section of Chapter 37 of the Code of Federal Regulations. This page was last updated in November, 2005. You may return to the main 37 CFR Index, or to the index for one of the follow parts:
part 1 (patents);
part 2 (trademarks);
part 3 (assignments);
part 10 (representation); or
part 200+ (copyrights).
A complete affidavit or declaration under section 8 of the Act must:
(a)Be filed by the owner within the period set forth in § 2.160(a);
(b)Include a statement that is signed and verified (sworn to) or supported by a declaration under § 2.20 by a person properly authorized to sign on behalf of the owner, attesting to the continued use or excusable nonuse of the mark within the period set forth in section 8 of the Act. The verified statement must be executed on or after the beginning of the filing period specified in § 2.160(a). A person who is properly authorized to sign on behalf of the owner is:
(1)A person with legal authority to bind the owner; or
(2)A person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the owner; or
(3)An attorney as defined in § 10.1(c) of this chapter who has an actual or implied written or verbal power of attorney from the owner.
(c)Include the registration number; (d)(1) Include the fee required by § 2.6 for each class of goods or services that the affidavit or declaration covers;
(2)If the affidavit or declaration is filed during the grace period under section 8(c)(1) of the Act, include the late fee per class required by § 2.6;
(3)If at least one fee is submitted for a multi-class registration, but the class(es) to which the fee(s) should be applied are not specified, the Office will issue a notice requiring either the submission of additional fee(s) or an indication of the class(es) to which the original fee(s) should be applied. Additional fee(s) may be submitted if the requirements of § 2.164 are met. If the required fee(s) are not submitted and the class(es) to which the original fee(s) should be applied are not specified, the Office will presume that the fee(s) cover the classes in ascending order, beginning with the lowest numbered class; (e)(1) Specify the goods or services for which the mark is in use in commerce, and/or the goods or services for which excusable nonuse is claimed under § 2.161(f)(2);
(2)If the affidavit or declaration covers less than all the goods or services, or less than all the classes in the registration, specify the goods or services being deleted from the registration; (f)(1) State that the registered mark is in use in commerce on or in connection with the goods or services in the registration; or
(2)If the registered mark is not in use in commerce on or in connection with all the goods or services in the registration, set forth the date when use of the mark in commerce stopped and the approximate date when use is expected to resume; and recite facts to show that nonuse as to those goods or services is due to special circumstances that excuse the nonuse and is not due to an intention to abandon the mark;
(g)Include a specimen showing current use of the mark for each class of goods or services, unless excusable nonuse is claimed under § 2.161(f)(2). The specimen must:
(1)Show the mark as actually used on or in connection with the goods or in the sale or advertising of the services. A photocopy or other reproduction of the specimen showing the mark as actually used is acceptable. However, a photocopy that merely reproduces the registration certificate is not a proper specimen;
(2)Be flat and no larger than 8.5 inches (21.6 cm.) wide by 11.69 inches (29.7 cm.) long. If a specimen exceeds these size requirements (a "bulky specimen"), the Office will create a facsimile of the specimen that meets the requirements of the rule (i.e., is flat and no larger than 8.5 inches (21.6 cm.) wide by 11.69 inches (29.7 cm.) long) and put it in the record. In the absence of non-bulky alternatives, the Office may accept an audio or video cassette tape recording, CD-ROM, or a specimen in another appropriate medium.
(3)Be a digitized image in.jpg format, if transmitted through TEAS.