Regulated-Industry Trademark Filing Checklist: Cannabis, Alcohol, Firearms, and Supplements

By Casey Scott McKay · 2024-11-15

This checklist is the working, phase-by-phase procedure for filing and prosecuting trademarks for businesses whose goods are regulated by TTB, ATF, FDA, or the drug schedules, where the ordinary application workflow fails because "use in commerce" means lawful use in commerce. Eleven phases run from regulatory intake through the legality analysis, the public-record audit, dual trademark-and-regulatory clearance, filing-basis selection, identification drafting, specimen capture, the federal-state-and-other-rights filing plan, the response to a 37 C.F.R. 2.69 inquiry or TMEP 907 refusal, the enforcement plan, and the dual regulatory docket. Every phase carries the form numbers, fee amounts, rule cites, and field names a practitioner needs to actually execute it, with model identification language for distilled spirits, firearms and NFA items, dietary supplements, hemp topicals, and the ancillary classes that carry a regulated brand's federal portfolio. A single invented matter — Kestrel Provisions Co. of Bozeman, Montana, with a whiskey line, a suppressor line, a supplement line, and a CBD balm — is carried through every phase so the reader can see what a finished file looks like. Deadline and fee tables reflect the USPTO schedule in effect since January 2025, and the closing sections collect the ten mistakes that cost clients the most money and the deadlines that belong on a docket alongside the USPTO's.

IP and Technology > Trademarks | Checklist | Published 15 November 2024 - Updated 3 July 2026 | Casey Scott McKay - marksy.us

Summary. Eleven phases, worked top to bottom, for filing trademarks where a federal regulator stands between the client and lawful sale. It covers regulatory intake, the per se legality analysis, the public-record audit, dual clearance, filing-basis choice, identification drafting for spirits, firearms, supplements, and hemp goods, specimen capture that does not prove your client's illegality, the federal-state-and-copyright filing plan, the response to a § 2.69 inquiry or § 907 refusal, enforcement without a registration, and the regulatory docket that runs beside the USPTO one. Form numbers, fees, and rule cites throughout; one invented matter carried through every phase.

Keywords: regulated industry trademark filing · lawful use requirement · tmep 907 · 37 cfr 2.69 · cannabis trademark checklist · hemp cbd identification · ttb cola · federal alcohol administration act · geographical indication wines and spirits · firearms trademark class 13 · nfa suppressor identification · atf marking variance · dietary supplement trademark · new dietary ingredient notification · structure function claim · specimen risk · per se violation · state trademark registration · office action response deadline · regulatory docket

What this checklist is for

Federal registration requires "use in commerce," and the USPTO reads that to mean lawful use in commerce. 15 U.S.C. §§ 1051, 1127; TMEP § 907; 37 C.F.R. § 2.69. In four industries — cannabis and hemp, alcohol, firearms, and dietary supplements — that single gloss reorders the entire filing workflow. The identification has to be drafted before the mark is chosen, the client's marketing copy becomes evidence in its own prosecution, and the deadline that destroys the registration is often not on the USPTO's calendar at all.

Who should use it. Prosecution counsel filing for a regulated client; in-house counsel building a portfolio inside a licensed business; and any generalist who has just been handed a spirits, firearms, supplement, or hemp brand and needs to not lose the client's money.

What this is not. It does not re-teach the doctrine. Why the refusal exists, what a per se violation is, and how In re Stanley Brothers, AK Futures, and Kiva fit together are all in The Lawful Use Requirement. The judgment calls, model office action responses, license clauses, and cost tables sit in Registering a Cannabis-Adjacent Trademark. This is the desk version, extended across the other three verticals.

What you'll need before you start.

The complete SKU list with ingredient decks, formulation sheets, and current lot certificates of analysis — not the marketing catalogue.
An entity chart showing every company that manufactures, imports, publishes, or sells under the mark.
Copies of every federal and state permit, license, registration, and notification the business holds, with numbers and expiration dates.
Current label proofs, and for alcohol, any issued certificate of label approval.
Screenshot access to every public channel: website, marketplaces, wholesale portal, social accounts, Google Business Profile.
A blank docket ready to hold two calendars.

The matter carried through this checklist. Kestrel Provisions Co., LLC, Bozeman, Montana. An outdoor lifestyle brand with four regulated lines and one clean one: KESTREL apparel, packs, and knives; KESTREL SINGLE BARREL rye whiskey, contract-distilled in Indiana and bottled in Montana; KESTREL DEFENSE suppressors and rifle accessories; KESTREL RECOVER, an electrolyte and tart-cherry powder containing a standardized Rhodiola crenulata extract; and KESTREL FIELD BALM, a hemp-derived CBD topical. The founder wants "the trademark" filed by summer. There are nine decisions, four regulators, and one mark.

| Phase | What you produce | Typical elapsed | Blocks filing? | |---|---|---|---| | 1. Regulatory intake | Permit inventory and regime map | Day 1 | Yes | | 2. Legality analysis | Per-SKU verdict memo | Days 2-5 | Yes | | 3. Public-record audit | Remediation memo, dated screenshots | Weeks 1-3 | Yes | | 4. Dual clearance | Search opinion plus regulatory sweep | Weeks 2-4 | Yes | | 5. Filing basis | Basis decision per application | Week 4 | Yes | | 6. Identification drafting | Final recitations, all classes | Week 5 | Yes | | 7. Specimen package | Capture instructions and files | Weeks 5-16 | For § 1(a) | | 8. Filing plan executed | Applications, state filings, copyrights | Week 6 onward | — | | 9. Office action response | Amendment, sworn answer, or deletion | Months 7-14 | — | | 10. Enforcement plan | Rights inventory and weapon map | As needed | — | | 11. Regulatory docket | Dual calendar, quarterly sweep | Continuous | — |

Phase 1 — Regulatory intake: name the regime before you name the mark

[ ] Obtain and personally read the SKU list, ingredient decks, and current certificates of analysis for every product bearing the mark.
- Why. Founders describe products in marketing language. "Wellness brand," "tactical accessories," and "craft spirits" tell you nothing about which statute applies.
- Trap. The side project. Kestrel's founder described the company as "apparel and whiskey." The SKU sheet showed a suppressor line and a CBD balm, which moved roughly half the filing budget.
[ ] Chart every entity that manufactures, imports, publishes, or sells under the mark, and decide which one owns and controls it.
- Why. The applicant must be the party that owns the mark; an application filed in the wrong entity's name is void and generally cannot be fixed by amendment.
- Authority. 15 U.S.C. § 1051(a)(1); 37 C.F.R. § 2.71(d); TMEP § 1201.02(b)-(c).
[ ] Build a one-page permit inventory with numbers and dates: TTB basic permit, distilled spirits plant registration or brewer's notice, federal firearms license type and special occupational tax class, FDA food facility registration, MoCRA cosmetic facility registration and product listing, state hemp or cannabis licenses, state alcoholic beverage licenses.
[ ] For each product line, write down the one federal statute that could make its sale unlawful, the agency that enforces it, and the single document that proves compliance.

| Line | Primary federal regime | Regulator | The document that proves compliance | |---|---|---|---| | Distilled spirits, wine, malt beverages | Federal Alcohol Administration Act, 27 U.S.C. §§ 201-219a | TTB | Basic permit (TTB F 5100.24); certificate of label approval (TTB F 5100.31); formula approval where required | | Ordinary firearms and ammunition | Gun Control Act, 18 U.S.C. §§ 921-931 | ATF | Federal firearms license; receiver marking under 27 C.F.R. § 478.92 | | Suppressors, short-barreled rifles, machine guns | National Firearms Act, 26 U.S.C. §§ 5801-5872 | ATF | SOT registration; Forms 1, 2, 3, 4; marking under 27 C.F.R. § 479.102 | | Dietary supplements | FDCA as amended by DSHEA, Pub. L. No. 103-417 | FDA and FTC | Food facility registration, 21 U.S.C. § 350d; NDI notification, § 350b; cGMP, 21 C.F.R. pt. 111 | | Cosmetics and topicals | FDCA; Modernization of Cosmetics Regulation Act | FDA | Facility registration and product listing; labeling under 21 C.F.R. pt. 701 | | Hemp-derived goods | 7 U.S.C. § 1639o(1); 21 U.S.C. § 802(16)(B) | USDA, FDA, states | Licensed producer plus lot-specific COA | | Marijuana and paraphernalia | Controlled Substances Act, 21 U.S.C. §§ 812, 841, 863 | DEA | No federal document exists |

[ ] Run the eight triage questions in Stage 1 of the companion guide and record a bucket for every SKU before any search begins.

Phase 2 — Run the legality analysis, product by product

[ ] For each SKU, answer one question in writing: does the sale of this good, in this form, with this labeling, violate a federal statute on the face of what the USPTO will see?
- Why. That is the examiner's standard, not general regulatory tidiness. Lawfulness is presumed absent a per se violation or a prior finding by a court or competent agency.
- Authority. TMEP § 907; 37 C.F.R. § 2.69; In re Midwest Tennis & Track Co., 29 USPQ2d 1386 (T.T.A.B. 1993).
[ ] Record a one-word verdict per SKU: FILE, FILE NARROWED, DO NOT FILE, or STATE ONLY.
[ ] Alcohol: confirm the client holds a basic permit and that this exact brand name is on an issued COLA or is one TTB will plausibly approve.
- Why. TTB reviews brand names for misleading content before it approves a label. A USPTO registration does not bind it, and the two agencies routinely reach different answers.
- Authority. 27 U.S.C. § 205(e); 27 C.F.R. pt. 13.
- Trap. Age, origin, and class implications. A name suggesting a place the spirit does not come from, an age it has not reached, or a class it does not meet gets refused at TTB after the packaging is printed.
[ ] Firearms: read every proposed recitation against 18 U.S.C. § 922(o) and (p) and the NFA, and flag any goods that cannot lawfully be transferred to the general public.
- Why. Ordinary Class 13 firearms and ammunition register routinely. Machine guns manufactured after 19 May 1986 cannot be transferred to civilians, and an undetectable firearm cannot be lawfully manufactured at all. A recitation that reaches those goods hands the examiner a per se violation.
- Authority. 18 U.S.C. § 922(o), (p); 26 U.S.C. §§ 5841, 5845.
[ ] Firearms: confirm the export posture of every item in the recitation, because "firearms" in an identification can sweep in controlled articles.
- Authority. The January 2020 rules moved most commercial firearms, shotguns, and ammunition from U.S. Munitions List Categories I-III to Commerce Control List entries 0A501, 0A502, and 0A505, effective 9 March 2020; ITAR registration under 22 C.F.R. § 122.1 still reaches manufacturers of remaining defense articles whether or not they export.
[ ] Supplements: classify every dietary ingredient as an old dietary ingredient or a new dietary ingredient, and for each NDI confirm a 75-day premarket notification was submitted and drew no objection.
- Why. An ingredient first marketed in the United States on or after 15 October 1994 is an NDI. A supplement containing an NDI without notification is adulterated, which is a per se FDCA violation visible from a label.
- Authority. 21 U.S.C. §§ 350b(a), (d), 342(f)(1)(B).
- Trap. Kestrel's Rhodiola crenulata extract is standardized to a fixed salidroside content by a supercritical process. Whole-herb rhodiola may be an ODI; a novel standardized extract of it may not be the same ingredient. Get the NDI opinion in writing before you file, not after the office action.
[ ] Supplements: screen the formula against the ingredients FDA treats as categorically unlawful — cannabidiol, kratom, ephedrine alkaloids, DMAA, SARMs, tianeptine, and designer anabolic steroids.
- Authority. 21 U.S.C. § 321(ff)(3)(B); 21 C.F.R. § 119.1; 21 U.S.C. § 802(41).
[ ] Hemp: confirm delta-9 THC at or below 0.3% on a dry weight basis and run the total-THC test that takes effect 12 November 2026.
[ ] Deliver a one-page verdict memo to the client and get it acknowledged in writing before you spend anything on clearance.

Kestrel's verdicts. Apparel, packs, and knives: FILE. Rye whiskey: FILE, gated on the COLA. Suppressors and accessories: FILE NARROWED, with the recitation drawn to lawfully transferable NFA items and no machine guns. RECOVER powder: FILE NARROWED, but only after the NDI question is resolved. FIELD BALM: FILE as a Class 3 non-medicated cosmetic, on the same analysis run for Ridgeline Botanicals in the companion guide, and not in Class 5.

Phase 3 — Audit the public record before an examiner does

[ ] Capture dated, URL-visible screenshots of every product page, the homepage, the shop and cart pages, every marketplace listing, all social accounts, the wholesale portal, the Google Business Profile, and the archived versions of all of it.
- Why. In this practice area the applicant's own marketing is the evidence the Board relies on. In re Morgan Brown, 119 USPQ2d 1350 (T.T.A.B. 2016); In re National Concessions Group Inc., 2023 USPQ2d 1032 (T.T.A.B. 2023).
[ ] Delete every claim that any product diagnoses, cures, mitigates, treats, or prevents a disease, and every structure/function claim the substantiation file cannot support.
- Authority. 21 U.S.C. §§ 321(g)(1)(B), 343(r)(6), 355(a); FTC Act, 15 U.S.C. § 45.
[ ] Alcohol: remove health claims and therapeutic implications from advertising and confirm the Government Warning appears on every label proof.
- Authority. Alcoholic Beverage Labeling Act, 27 U.S.C. §§ 213-219a, § 215; 27 C.F.R. pt. 16.
[ ] Firearms: remove copy that markets an unregulated accessory for a regulated use — a "solvent trap" sold with the vocabulary of a suppressor, a brace described as converting a pistol to a rifle, a parts kit described as a complete build.
- Why. National Concessions is the template: an innocuous identification plus marketing that describes the regulated use equals a per se violation. The ATF frame-or-receiver rule, 87 Fed. Reg. 24,652 (Apr. 26, 2022), upheld in Bondi v. VanDerStok, 604 U.S. ___ (2025), makes the parts-kit version of this concrete.
[ ] Supplements: reconcile every marketing claim to the Supplement Facts panel and to the substantiation file, and confirm the mandatory disclaimer appears wherever a structure/function claim does.
- Authority. 21 U.S.C. § 343(r)(6)(C); 21 C.F.R. § 101.36.
- Trap. Curated five-star reviews on a product page are the client's own copy for this purpose. So are influencer captions the brand reposted.
[ ] Verify "Made in USA" and country-of-origin claims across all four lines before they become a false-advertising exhibit.
- Authority. FTC Made in USA Labeling Rule, 16 C.F.R. pt. 323.
[ ] Send a dated remediation memo with a deadline, then re-audit two business days before filing and again before any specimen is submitted.
[ ] Keep the "before" screenshots in the matter file.
- Why. If an examiner later attaches a stale archived page, you need to prove what changed and when.

Phase 4 — Clear the name twice

[ ] Run the ordinary knockout and full search and issue a written opinion, per Trademark Clearance Search Checklist and Running a Full Trademark Clearance Search; the limits of the knockout stage are set out in Trademark Clearance Searching.
[ ] Alcohol: search TTB's public COLA registry for the exact mark and near neighbours, and search across beverage classes, not just the client's own.
- Why. The alcohol register is dense and the TTAB treats beverage categories as related. In re Chatam International Inc., 380 F.3d 1340 (Fed. Cir. 2004) (JOSE GASPAR GOLD for tequila confusable with GASPAR'S ALE).
[ ] Wine and spirits: test the mark against the geographical-indication bar before anything else.
- Authority. 15 U.S.C. § 1052(a) bars a geographical indication that, used on wines or spirits, identifies a place other than the origin of the goods, for marks first used on or after 1 January 1996; TMEP § 1210.08. The related surname, geographic, and deceptiveness bars are worked through in The Section 2 Bars.
- Trap. KESTREL SINGLE BARREL is fine. KESTREL BOZEMAN RESERVE, on whiskey distilled in Indiana, is a deceptive-misdescriptiveness problem and a TTB labeling problem in the same three words.
[ ] Search the FDA warning letter database and FTC enforcement releases for the client, its principals, and the mark itself.
[ ] Search the state registers seriously, including California's cannabis classifications 500 and 501, and pull the file wrapper on every dead federal application for related goods.
- Why. A dead cannabis application is not evidence of a free mark; it is evidence of a senior common-law user who could not register. See Where Your Trademark Rights End.
[ ] Clear domains and social handles in the same pass, and note any third-party certification marks the client intends to display — NSF, Informed Sport, organic seals — which are licensed, not owned. See Certification and Collective Marks.

Phase 5 — Choose the filing basis

[ ] File under § 1(a) only if a compliant specimen exists today, in the client's hands, for the goods as recited.
- Trap. A pre-production label comp is not use. Neither is a rendering. See Specimen Refusals.
[ ] File under § 1(b) whenever the launch is gated on a regulatory approval that has not issued — a pending COLA, an NDI notification inside the 75-day window, an ATF marking variance, a MoCRA listing.
- Why. Intent-to-use buys the priority date while the regulator works, and the specimen problem moves to the statement of use. Mechanics in Intent-to-Use Applications and From Notice of Allowance to Registration.
[ ] Do not use § 1(b) as a placeholder for goods that cannot lawfully be sold at all.
- Authority. In re PharmaCann LLC, 123 USPQ2d 1122 (T.T.A.B. 2017) — no bona fide intent to use where the recited goods or services are federally prohibited.
[ ] Treat § 44(e) and § 66(a) as constrained, and think hard before letting a foreign client route a regulated brand through Madrid.
- Why. A § 44(e) applicant must still verify bona fide intent to use in commerce, 15 U.S.C. § 1126(e). A § 66(a) applicant cannot change basis, cannot move to the Supplemental Register, cannot broaden the identification, and gets a six-month response period with no extension — so a provisional refusal leaves only narrowing. See WIPO Office Actions and Provisional Refusals and the International Trademark Toolkit.
[ ] Confirm with the client, in writing, that the Supplemental Register is not an escape hatch. Registration under 15 U.S.C. § 1091 still requires lawful use.
[ ] Budget the filing at current rates before you promise a number.

| Filing | Fee | |---|---| | Base application, § 1 or § 44, per class | $350 | | Surcharge, free-form identification, per class | $200 | | Surcharge, identification over 1,000 characters, per class per additional 1,000 | $200 | | § 66(a) request for extension of protection, per class | $600 | | Three-month extension of the office action response period | $125 | | Statement of use, per class | $150 | | Extension of time to file a statement of use, per class | $125 | | Petition to revive | $250 | | Notice of ex parte appeal / appeal brief, per class | $225 / $200 |

Phase 6 — Draft identifications that foreclose the violation

[ ] Draft every recitation in four moves: the plain-English good, the source qualifier, the statutory limitation verbatim, and a negative limitation wherever the class is ambiguous.
- Why. The identification is the only part of the file the examiner reads before deciding whether a per se violation appears. This is the highest-leverage hour in the matter. The general craft is in Drafting an Identification of Goods and Services; the class logic is in The Nice Classification System.
[ ] Never recite goods the client cannot lawfully sell to the audience the recitation implies.

| Class | Line | Model identification | |---|---|---| | 33 | Spirits | Distilled spirits, namely, rye whiskey | | 32 | Beer | Beer; non-alcoholic malt beverages, none containing cannabidiol or hemp extract | | 13 | Firearms | Firearms, namely, bolt-action rifles and rifle barrels; none of the foregoing being machine guns | | 13 | NFA items | Firearm suppressors; none of the foregoing being machine guns or destructive devices | | 13 | Ammunition | Ammunition; ammunition magazines | | 9 | Optics | Telescopic sights for rifles; laser rangefinders | | 5 | Supplement | Dietary supplements in powdered drink mix form containing electrolytes and tart cherry extract; none containing cannabidiol, kratom, ephedrine alkaloids, or 1,3-dimethylamylamine | | 3 | Topical | Non-medicated topical body balm containing hemp-derived cannabidiol, said cannabidiol containing less than 0.3% delta-9 tetrahydrocannabinol on a dry weight basis | | 25 | Apparel | Clothing, namely, T-shirts, hooded sweatshirts, and hats | | 35 | Retail | Retail store and online retail store services featuring apparel, outdoor gear, firearms, and ammunition | | 41 | Media | Entertainment services, namely, an ongoing audio program in the field of hunting and outdoor recreation, distributed via podcast |

[ ] Alcohol: match the class and type designation in the recitation to the class and type on the approved label.
- Trap. A COLA issued for "whisky specialty" and an application for "bourbon whiskey" describe two different products. The examiner will not notice; a TTAB opponent or a diligence lawyer will.
[ ] Supplements: never choose an ID Manual entry containing "for medicinal purposes," "for the treatment of," or "nutraceutical for use as a dietary supplement for [condition]."
- Why. The phrase converts a supplement into a drug claim on the face of your own application, and a drug claim converts the product into an unapproved new drug under 21 U.S.C. § 355(a).
[ ] Firearms: state affirmatively what the goods are not, rather than relying on the reader's assumption.
[ ] Hemp and CBD: use the statutory limitation word for word, and add the total-THC and no-synthesized-cannabinoids language for anything intended to survive 12 November 2026.
[ ] Confirm each entry against the current ID Manual, keep each class under 1,000 characters, and pay the free-form surcharge without complaint.
[ ] Run the whole set through the Goods and Services Identification Checklist and the Pre-Filing Trademark Application Checklist before submission.

Phase 7 — Build the specimen package

[ ] For each SKU capture three files: a straight-on photograph of the finished retail package showing the mark and the full label copy; a photograph of the mark applied to the goods themselves; and a full-page screenshot of the live product page showing price and an add-to-cart control, with URL and date visible.
- Authority. 37 C.F.R. § 2.56(b)(1); In re Siny Corp., 920 F.3d 1331 (Fed. Cir. 2019).
[ ] Read every specimen as an exhibit against your client before you file it, including everything else in the frame.
- Trap. Cropping does not help. The examiner visits the live URL.
[ ] Alcohol: photograph the COLA-approved label, including the Government Warning, and confirm the label in the photograph is the one TTB approved.
- Authority. 27 U.S.C. § 215; 27 C.F.R. pt. 16.
[ ] Firearms: photograph the receiver marking and the retail box, and confirm that the trademark on the specimen matches the drawing and does not collide with the required manufacturer identification.
- Why. ATF requires the manufacturer's name and location on the frame or receiver. Where a contract manufacturer builds the product, the marked name and the brand can diverge — request an ATF marking variance in writing before the first production run, and keep the trademark on the packaging and hangtag as well.
- Authority. 27 C.F.R. §§ 478.92, 479.102.
[ ] Supplements: capture the full label including the Supplement Facts panel, the ingredient declaration, and the § 343(r)(6) disclaimer.
- Trap. The panel is evidence. A label bearing an unsubstantiated disease claim is proof of misbranding submitted voluntarily, under oath, by the applicant.
[ ] Apparel and ancillary goods: submit a neck label, hangtag, or small left-chest placement, never a full-front print.
- Authority. TMEP § 1202.03; In re Lululemon Athletica Canada Inc., 105 USPQ2d 1684 (T.T.A.B. 2013).
[ ] Reject renderings, mock-ups, design-program exports, and photographs of samples that differ from what is being sold.
[ ] Audit any substitute specimen as carefully as the first, and support it with a sworn statement that it was in use as of the relevant date.
[ ] For § 1(b) filings, calendar the statement-of-use clock now: see the Statement of Use Filing Checklist and the Request for Extension of Time to File a Statement of Use — Template.

Phase 8 — Execute the filing plan

[ ] File the federal applications in the order the client can actually support with specimens, and file the clean ancillary classes first.
- Why. Apparel, media, retail services, and software are the registrations a regulated brand can enforce in federal court. Sequencing on a founder's budget is in the Startup and Founder Brand Toolkit.
[ ] File state registrations in every state where the client is licensed and operating and federal registration is unavailable, and diarize the state renewal terms separately.
[ ] Alcohol: file state label and brand registrations where required, and check franchise-law consequences before appointing a distributor.
[ ] Register the copyright in label artwork, packaging illustration, and product photography.
- Why. Copyright does not care whether the underlying goods are federally lawful, and pre-infringement registration unlocks statutory damages and fees. 17 U.S.C. §§ 411(a), 412, 504(c), 505. See the Copyright Registration Checklist.
[ ] Once a federal registration issues on a counterfeit-prone line — spirits, optics, firearm accessories — record it with Customs and Border Protection.
- Authority. 19 C.F.R. § 133.2 (Principal Register only). Procedure in Stopping Counterfeits at the Border.
[ ] Open a docket entry per application carrying both the USPTO dates and the regulatory dates for the same product.
[ ] Confirm the chain of title before anything moves into a holding company, and record every assignment with the goodwill of the business.
- Authority. 15 U.S.C. § 1060(a)(1); see the Trademark Assignment Recordal Checklist.

Phase 9 — Answer the § 2.69 inquiry or the § 907 refusal

[ ] Diarize the deadline the day the action issues: three months from the issue date, extendable once by three months for $125; § 66(a) applications keep six months with no extension.
- Authority. 37 C.F.R. § 2.62(a); see The 3-Month Office Action Deadline and What Happens After You File.
[ ] Classify the document. A § 2.69 inquiry requests information and is a requirement; a § 907 refusal refuses registration. A non-responsive answer to the first produces the second.
[ ] Identify the examiner's actual evidence — the identification, the specimen, the applicant's website, third-party material, or a prior agency finding — and pick one posture accordingly: amend, answer under oath, traverse, or delete and preserve.
[ ] Amend where the goods comply and the recitation was merely loose, adding the statutory limitation and a negative limitation.
- Authority. 37 C.F.R. § 2.71(a) — an amendment may narrow but never broaden.
[ ] Answer a request for information under oath, narrowly, attaching only the document that resolves the question asked.
- Authority. 37 C.F.R. § 2.61(b); TMEP § 814. Model language is in Stage 8 of the companion guide; the shell is the Response to Office Action — Template.
- Trap. Generosity. A chatty answer is how a compliant Class 3 application acquires a record about the client's gummies.
[ ] Attach the compliance document that actually matters for the vertical: the issued COLA for spirits, the FDA acknowledgment letter for an NDI notification, the lot COA for hemp, the SOT registration for NFA goods.
[ ] Do not run the arguments that never work — the state license, a COA where the identification is the problem, third-party registrations for similar goods, a Tam or Brunetti First Amendment theory, an offer to amend to the Supplemental Register, or a prediction that Congress will act.
[ ] Respond to every refusal in the action, not only the lawful-use one. If a § 2(d) or descriptiveness refusal arrived with it, see Responding to a §2(d) Likelihood-of-Confusion Refusal, How to Overcome a Descriptiveness §2(e)(1) Refusal, the Section 2 Refusal Response Checklist, and the Office Action Response Checklist.
[ ] If the refusal goes final, decide appeal versus refile on the numbers, not on principle.
- Why. Appeal when the examiner misread the record, when the amended identification forecloses the violation and the refusal stands anyway, or when the client is funding a test case. If the goods are genuinely unlawful, a refile with a corrected identification costs $350 a class and an appeal costs five figures. See Appealing a Final Refusal, Taking an Ex Parte Appeal, and the Ex Parte Appeal Checklist.
[ ] Divide the application under 37 C.F.R. § 2.87 if the client needs the clean classes to register while one class is fought over.

Kestrel, Serial No. 98/744,213 (Class 5). The office action issued 9 November 2026: a § 2.69 inquiry asking whether the rhodiola extract is a new dietary ingredient and whether notification was submitted, plus a specimen objection because the product page carried the line "beats DOMS after a hard day in the elk woods." Response due 9 February 2027, extendable to 9 May 2027 for $125. The posture was answer-under-oath plus substitute specimen: a sworn statement attaching the NDI notification and FDA's non-objection, a rebuilt product page with the claim removed and the disclaimer added, a substitute specimen from the clean page with a sworn date statement, and a narrowed recitation excluding CBD, kratom, ephedrine alkaloids, and DMAA. No argument about the merits of the claim was offered, because none was asked for.

Phase 10 — Build the enforcement plan around what you actually own

[ ] Inventory the client's rights on one page before sending a single letter: federal registrations by class, pending applications, state registrations, documented common-law territory, copyrights, and domains.
[ ] Match the weapon to the right you actually hold.

| Situation | First move | Authority | |---|---|---| | Marketplace or social-platform seller | Platform takedown; Amazon Brand Registry needs a federal registration, most others accept a state number | Platform policy | | Domain squatter | UDRP, or ACPA where you want damages | 15 U.S.C. § 1125(d) | | Copied label art or product photography | Copyright suit; statutory damages if registered in time | 17 U.S.C. §§ 412, 504(c) | | Counterfeit spirits, optics, or firearm parts | CBP recordation, seizure, statutory damages, criminal referral | 19 C.F.R. § 133.2; 15 U.S.C. § 1117(c); 18 U.S.C. § 2320 | | Competitor in a class you registered | Full Lanham Act infringement | 15 U.S.C. §§ 1114, 1125(a) | | Plant-touching goods, no federal registration | State registration plus state unfair competition; expect an unlawful-use defense | CreAgri, Inc. v. USANA Health Scis., Inc., 474 F.3d 626 (9th Cir. 2007) |

[ ] Assert only the rights you have. A demand letter claiming a "federally registered trademark" over a Colorado registration invites a declaratory judgment action and destroys your credibility in the same paragraph. See Sending an Effective Cease-and-Desist Letter, the Trademark Cease-and-Desist Letter — Template, and the Pre-Litigation Enforcement Checklist.
[ ] Where the brand is licensed to a regulated manufacturer, keep quality control real without collapsing into either naked licensing or state licensure.
- Why. In cannabis, revenue-share royalties can make the licensor a disclosable or licensable party in several states; in firearms, the regulatory marking and the trademark use can drift apart across a contract build. Both roads end at the same argument years later. See Naked Licensing, Drafting a Trademark License That Survives, and the Trademark License Quality Control Checklist.
[ ] Attack registrations that should never have issued — kratom goods recited as "botanical extracts," CBD supplements as "nutritional preparations."
- Authority. 15 U.S.C. § 1064(6); TMA expungement and reexamination, 15 U.S.C. §§ 1066a-1066b. See Filing a Petition for Cancellation.
[ ] Build the common-law record now, while witnesses and invoices exist, using the Common-Law Priority Evidence Checklist.
[ ] Escalate through the ladders in the Brand Enforcement Toolkit and the Online Brand Protection Toolkit.

Phase 11 — Stand up the regulatory docket

[ ] Put the USPTO dates and the regulatory dates in the same docket, owned by the same person, reviewed on the same cadence.
- Why. In this practice area the event that kills the registration is usually a statute, not a missed response. See Docketing Deadlines.
[ ] Set standing monitoring triggers by vertical: the 12 November 2026 hemp redefinition; state delta-8 and hemp-beverage bills; DEA and HHS scheduling actions; FDA action on 7-hydroxymitragynine; NDI and structure/function guidance; MoCRA listing renewals; TTB formula and COLA policy and state label registration renewals; ATF rulemaking on receivers, braces, and NFA classification; and export-control reclassifications.
[ ] Run a quarterly sweep of every operating state and log the results in the file even when nothing changed.
[ ] Never sign a § 8 declaration you cannot support because the goods have stopped being lawful. Narrow the identification, delete the rest, and file a matching specimen.
- Authority. 15 U.S.C. § 1058. See Filing a Section 8 Declaration of Continued Use and the Section 8 & 9 Renewal Checklist.
[ ] Watch for non-use gaps created by reformulation, and document the reformulation timeline contemporaneously.
- Authority. Three consecutive years of non-use raises the statutory presumption of abandonment. 15 U.S.C. § 1127. See Use It or Lose It and the Trademark Abandonment Evidence Checklist.
[ ] Run a watch service on the ancillary classes, which are the ones you can actually oppose. See Trademark Watch Services.
[ ] Reconcile the register against the business once a year using the Annual Trademark Portfolio Review Checklist and the Trademark Portfolio Inventory — Template.

Common Mistakes

Choosing the mark before analyzing the goods. In every other practice area the mark comes first. Here the identification comes first, and a name that cannot get a COLA or that reads as a geographic indication for spirits is dead regardless of how the search comes back.
Treating regulatory compliance as somebody else's file. The refusal almost never lands because the product is unlawful. It lands because the marketing describes an unlawful product.
Filing Class 5 because it sounds serious. Class 5 for anything containing cannabidiol is a supplement or a drug, and both are closed. A balm belongs in Class 3, and "non-medicated" in the recitation is load-bearing.
Reciting "firearms" without exclusions. The word reaches goods the client cannot lawfully sell to the public and goods that carry export-control consequences. Say what the goods are not.
Submitting a specimen without reading everything else in the frame. The related-products carousel, the reviews, the navigation bar, and the Supplement Facts panel are all in evidence.
Assuming an NDI notification was filed. Ask for the submission and the agency's response by date. "Our formulator handled it" is not a compliance record.
Answering a § 2.69 inquiry expansively. Answer what was asked, under oath, and stop.
Believing a state registration does federal work. It creates no federal priority, and after Kiva Health Brands LLC v. Kiva Brands Inc., 402 F. Supp. 3d 877 (N.D. Cal. 2019), federally unlawful use may create no enforceable priority at all.
Token ancillary filings. A hoodie registration supported by $100 of sales and then abandoned is an expungement target under 15 U.S.C. § 1066a. If you file it, sell it.
Docketing only the USPTO. The date that ends a hemp registration, a vape registration, or a supplement registration is set by Congress or an agency, and it will not appear in your trademark software unless you put it there.

Deadlines at a Glance

| Event | Deadline | Extension | Authority | |---|---|---|---| | Office action response | 3 months from issue date | One 3-month extension, $125 | 37 C.F.R. § 2.62(a) | | Office action response, § 66(a) | 6 months from issue date | None | 37 C.F.R. § 2.62(a) | | Opposition after publication | 30 days from publication | Extensions on request | 37 C.F.R. § 2.102 | | Statement of use after notice of allowance | 6 months | Up to five 6-month extensions, $125/class; 36-month outside limit | 15 U.S.C. § 1051(d) | | Notice of ex parte appeal | Within the response period for the final refusal | Same as response period | 37 C.F.R. § 2.142 | | Appellant's brief | 60 days after notice of appeal | On motion | 37 C.F.R. § 2.142(b)(1) | | Petition to revive an abandoned application | 2 months from the notice of abandonment | None | 37 C.F.R. § 2.66 | | § 8 declaration of continued use | Between the 5th and 6th anniversary of registration | 6-month grace period with surcharge | 15 U.S.C. § 1058 | | § 9 renewal with § 8 | Within the year before the end of each 10-year period | 6-month grace period with surcharge | 15 U.S.C. § 1059 | | § 15 incontestability | Any time after 5 consecutive years of post-registration use | — | 15 U.S.C. § 1065 | | New dietary ingredient notification | At least 75 days before introduction into interstate commerce | None | 21 U.S.C. § 350b(a) | | Structure/function claim notification to FDA | No later than 30 days after first marketing the claim | None | 21 U.S.C. § 343(r)(6)(C) | | TTB certificate of label approval | No statutory deadline; obtain before the label is printed | — | 27 C.F.R. pt. 13 | | Federal hemp redefinition | 12 November 2026 | None | H.R. 5371, 119th Cong. (2025) |