T.M.E.P. § 1104.10
Amendment and Withdrawal of Amendment to Allege Use
Executive summary:
This document contains one section of the Trademark Manual of Examining Procedure (the "TMEP"), Fourth Edition (April 2005). This page was last updated in June 2007. You may return to one either the section index, or to the key word index. If you wish to search the TMEP, simply use the search box that appears on the bottom of every page of BitLaw--be sure to restrict your search to the TMEP in the pop-up list.
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1104.10 Amendment and Withdrawal of Amendment to Allege Use
The applicant may amend the amendment to allege use to correct deficiencies, to overcome a refusal, to comply with a requirement, or for any other purpose.
The applicant may withdraw the amendment to allege use at any time before approval of the mark for publication. 37 C.F.R. 2.76(h). The Office will not refund the fee for filing an amendment to allege use that is withdrawn (except as provided in TMEP §1104.04) , and the document and specimen(s) filed with the amendment to allege use will remain part of the record.
The applicant may authorize the examining attorney to issue an examiner's amendment that withdraws the amendment to allege use.
If the applicant withdraws the amendment to allege use, the application will be processed as an intent-to-use application subject to publication and issuance of a notice of allowance. After issuance of the notice of allowance, the applicant must file a statement of use.
If the applicant wishes to request withdrawal of an amendment to allege use during an ex parte appeal, the applicant should direct the request to the Trademark Trial and Appeal Board.
If the applicant withdraws the amendment to allege use, the examining attorney will withdraw any requirements or refusals specifically related to use of the mark, such as objections related to the form of the verified statement itself, the agreement of the mark as used on the specimens with the mark shown on the drawing, or the use of the applied-for designation as a trademark or service mark evidenced by the specimen. The examining attorney should also withdraw any requirement or refusal related to the execution of the amendment to allege use.
The examining attorney should maintain any requirement or refusal arising from the amendment to allege use not specifically related to the dates of use or use of the mark, such as refusals or requirements related to ownership or refusals under 15 U.S.C. 1052(e)(1), §1052(e)(2), §1052(e)(3) or §1052(e)(4). The specimens or any other submission related to the amendment to allege use will remain part of the record and may be relied on to support refusals and requirements under these sections.
If the applicant withdraws the amendment to allege use after it has been approved, the examining attorney must withdraw the approval on the Office's automated Trademark Reporting and Monitoring ("TRAM") System.