Filing a Section 8 Declaration of Continued Use
By Casey Scott McKay ·
Between the fifth and sixth anniversaries of registration, and again in the year before every tenth anniversary, the owner of a federal trademark registration must file a sworn declaration that the mark is still in use — or the registration is cancelled by operation of statute, with no appeal and no discretion anywhere in the agency to help. This guide is the working walkthrough: how to fix the dates, how to audit an identification of goods against what the client actually sells, how to choose specimens an examiner will accept, when excusable nonuse is real and when it is wishful thinking, who may sign and when the signature must be executed, what the filing costs, and what the USPTO does with it after you press submit. It carries one registration — a two-class mark owned by a Providence bag maker — from the first calendar entry through a post-registration proof-of-use audit to acceptance, with the fees and dates shown at each step. It gives model declaration language, a decision tree for the deletion call that costs registrants the most money, a current fee table, and the escalation path when the Office refuses: office action, deficiency surcharge, final refusal, petition to the Director, and civil action. It also explains the two things practitioners consistently get wrong — filing on the last available day, and swearing to goods nobody has sold in years — and why the first is expensive and the second can be fatal. The doctrine of abandonment, the litigation posture, and the checklist version all live in companion documents linked throughout.
IP and Technology > Trademarks | Guide | Published 15 January 2026 - Updated 28 May 2026 | Casey Scott McKay - marksy.us
Summary. Between years five and six, and again in the year before every tenth anniversary, you must prove ongoing use of a registered mark or lose the registration. This guide is how. It walks the filing in stages: fixing the dates, auditing the identification of goods against what the client actually sells, choosing specimens that survive examination, deciding between use and excusable nonuse, getting the owner and the signature right, pricing the package, and handling everything the Office sends back — office actions, deficiency surcharges, proof-of-use audits, final refusals, and the petition to the Director. One registration is carried from first calendar entry through an audit to acceptance, with real dates and real fees. Model language, a deletion decision tree, and a current fee table are included. The step-by-step summary version is the companion checklist; the doctrine of non-use and abandonment lives in the companion article and litigation guide.
Keywords: section 8 declaration · continued use · excusable nonuse · post-registration audit · specimen of use · section 9 renewal · section 71 affidavit · six-month grace period · deficiency surcharge · deletion of goods · trademark maintenance · 15 u.s.c. 1058 · 37 c.f.r. 2.161 · post-registration office action · incontestability · trademark center · proof of use · registration cancellation · chain of title · madrid renewal
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