1206.02 Statement of Use
A statement of use under Trademark Act § 1(d), 15 U.S.C. § 1051(d), is premature if it is filed in an intent-to-use application, i.e., an application under Trademark Act § 1(b), 15 U.S.C. § 1051(b), prior to the issuance of a notice of allowance under Trademark Act § 13(b)(2), 15 U.S.C. § 1063(b)(2). [ Note 1.]
A notice of allowance is not issued in an intent-to-use application (for which no amendment to allege use under Trademark Act § 1(c), 15 U.S.C. § 1051(c), has been timely filed and accepted) unless and until the application is approved for publication, and then published in the Official Gazette for opposition; no timely opposition is filed or all oppositions filed are dismissed; and no interference is declared. [ Note 2.] See TBMP § 219.
Therefore, a statement of use filed during an ex parte appeal to the Board generally is premature. A premature statement of use will not be considered. [ Note 3.] Instead, the premature statement of use will be returned to the applicant and the fee will be refunded.
NOTES:
1. See 37 C.F.R. § 2.88(a).
2. See Trademark Act § 13(b)(2), 15 U.S.C. § 1063; 37 C.F.R. § 2.81(b); TMEP § 1109.04.
3. See 37 C.F.R. § 2.88(a).