T.M.E.P. § 1109.11
Verification and Execution
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1109.11 Verification and Execution
The requirement that a statement of use include a signed verification or declaration is a statutory requirement that must be satisfied before expiration of the deadline for filing the statement of use. 15 U.S.C. 1051(d)(1); 37 C.F.R. 2.88(e)(3); In re Kinsman, 33 USPQ2d 1057 (Comm'r Pats. 1993).
If, before taking an action in connection with the statement of use, the examining attorney determines that the statement of use does not include a signed verification or declaration, the examining attorney should refer the application to the ITU Unit for appropriate action.
1109.11(a) Authority of Signatory
A statement of use must include a statement that is signed and verified by a person properly authorized to sign on behalf of the applicant. 37 C.F.R. 2.88(b)(1). Anyone who can verify the initial application can verify the statement of use. Generally, the Office will not question the authority of the person who signs a verification unless there is an inconsistency in the record as to the signatory's authority to sign. See TMEP §804.04.
1109.11(b) Verification of Essential Elements
The examining attorney must review the verified statement of use to confirm that it conforms to the requirements of the Act and the rules. The statement must include a verified statement that the applicant believes it is the owner of the mark, and a verification of the dates of use and identification of the goods/services. 15 U.S.C. 1051(d)(1); 37 C.F.R. 2.88(b)(1). See TMEP §1109.10 regarding ownership, TMEP §1109.09(a) regarding dates of use, and TMEP §1109.13 regarding the identification of goods/services.
The averment of ownership is an essential element of the verification. If it is omitted, the examining attorney must require the applicant to submit a verified statement that the applicant is the owner of the mark. This statement can be submitted after expiration of the time for filing the statement of use.
1109.11(c) Date of Execution
If the statement of use was executed before the stated dates of use, the examining attorney must require that the statement be re-executed. See TMEP §903.07(a) regarding apparent discrepancies between dates of use and execution dates, and TMEP §§903.05 and 1109.09(a) regarding amendment of the dates of use.
If the statement of use is filed more than one year after the date of execution, the examining attorney will require a substitute verification or declaration under 37 C.F.R. 2.20 stating that the mark is still in use in commerce. 37 C.F.R. 2.88(k); TMEP §804.03.
1109.11(d) Signature of Electronically Transmitted Statement of Use
See TMEP §§301 and 804.05 regarding signature of electronically filed documents.