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March 18, 2020

The USPTO Audit Program: What It Means if Your Registration Is Selected

In November 2017, the US Patent and Trademark Office (USPTO) launched the Post Registration Proof of Use Audit Program. Now, a little more than two years after the program launched, we are seeing an increased number of registrations being selected for verification.

The program targets owners of federal trademark registrations when a “declaration of use” is filed in support of a registration and the registration covers one of the following:

  1. One class with four or more goods or services (e.g., registration covers Class 25 for shirts, dresses, sweaters, headwear, and children’s dresses)
  2. At least two classes with two or more goods or services (e.g., registration covers Class 32 for beer; Class 33 for wine, vodka, and gin; and Class 43 for hotel services, bar services and restaurant services)

A declaration of use is a post-registration filing that occurs on certain milestone dates and is required in order to maintain the trademark registration. In the declaration of use filing, the owner must submit examples showing the registered mark in use in connection with the relevant goods or services. The number and type of examples required for a declaration of use depends on the nature of the goods or services covered by the trademark registration.

The program amplifies the minimum requirements of a declaration of use to doubly ensure the veracity of the statements made in the declaration of use filing. Owners of trademark registrations selected to participate in the program must respond accurately in a timely manner. Failure to appropriately respond to a post-registration audit of a registration may result in a partial or full loss of registration rights.

To avoid an unintended loss of rights, be sure to work with an experienced attorney if your registration is selected under the USPTO Post Registration Proof of Use Audit Program.

If you have any questions regarding the content in this alert, please contact Katie Markert, counsel, at kmarkert@barclaydamon.com or another member of the firm’s Branding, Trademarks & Copyrights Practice Area.

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