TMEP 1109.04: Time for Filing Statement of Use

This is the October 2015 Edition of the TMEP

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1109.04    Time for Filing Statement of Use

The statement of use must be filed within six months after the issuance date of the notice of allowance or within a previously granted extension of time for filing a statement of use. 37 C.F.R. §2.88(a)(1); see 15 U.S.C. §1051(d)(1)-(2). See TMEP §§1108–1108.05 regarding extension requests.

If the applicant does not timely file a statement of use within this time period, the application is abandoned. 15 U.S.C. §1051(d)(4); 37 C.F.R. §2.88(k). If the failure to timely file a statement of use is unintentional, the applicant may file a petition to revive under 37 C.F.R. §2.66. See TMEP §§1714–1714.01(g).

A statement of use filed through TEAS is considered to have been filed on the date the USPTO receives the transmission, regardless of whether that date is a Saturday, Sunday, or federal holiday within the District of Columbia. 37 C.F.R. §2.195(a)(2).  

A statement of use filed on paper is considered timely if it is received in the USPTO by the due date or mailed or transmitted by the due date with a certificate of mailing or facsimile transmission in accordance with 37 C.F.R. §2.197. See TMEP §§305.02 and 306.05 for certificate of mailing and certificate of facsimile transmission procedures to avoid lateness.

Any statement of use filed after the examining attorney approves the mark for publication but before the issuance of the notice of allowance is untimely and will not be considered. 37 C.F.R. §2.88(a)(1). The USPTO will refund the filing fee. 37 C.F.R. §2.88(a); see TMEP §§1104.03(b), (c).