TMEP 1104: Amendment to Allege Use Under §1(c) of the Act

This is the October 2015 Edition of the TMEP

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1104    Amendment to Allege Use Under §1(c) of the Act

As previously stated, an intent-to-use applicant under 15 U.S.C. §1051(b) must file either an amendment to allege use under 15 U.S.C. §1051(c) or a statement of use under 15 U.S.C. §1051(d) before issuance of the registration. This section pertains only to amendments to allege use. Statements of use are discussed in TMEP §§1109-1109.18.

An amendment to allege use is treated as a non-responsive filing. Therefore, filing an amendment to allege use does not relieve the applicant of the duty to file a response to an outstanding Office action or to take any other action required in the case, including filing a notice of appeal to the Board or a petition to the Director. See 37 C.F.R. §2.63(d). See TMEP §1104.07 regarding the filing of an amendment to allege use in conjunction with an appeal. Therefore, the applicant must file a separate response to any outstanding Office action. Failure to respond to an outstanding Office action will result in abandonment of the application. See TMEP §718.06 regarding notice of abandonment for failure to respond.