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, and 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).