1109.13 Identification of Goods/Services in Statement of Use
The statement of use must either list or incorporate by reference the goods/services specified in the notice of allowance on or in connection with which the mark is in use in commerce. 15 U.S.C. §1051(d)(1); 37 C.F.R. §2.88(b)(1)(ii). The goods/services specified in the statement of use must conform to the goods/services identified in the notice of allowance. 37 C.F.R. §2.88(i)(1). To incorporate the goods/services in the notice of allowance by reference, the applicant may elect the TEAS form option that states that "the mark is in use in commerce on or in connection with all of the goods/services, or to indicate membership in the collective organization listed in the application or Notice of Allowance or as subsequently modified for this specific class." The form requires the applicant to designate the goods/services for each class for which use is being asserted.
If the applicant omits any goods/services that were listed in the notice of allowance, the ITU/Divisional Unit will delete these goods/services from the application. The applicant may not thereafter reinsert the deleted goods/services. 37 C.F.R. §2.88(i)(2). In this situation, the applicant cannot file a petition under 37 C.F.R. §2.66, claiming unintentional delay in filing a statement of use for the omitted goods/services.
For a permitted paper filing (see TMEP §301.02), if the applicant fails to identify or incorporate by reference any goods or services, or if the applicant designates all the goods/services as not in use, the USPTO will permit applicant to correct the mistake. The ITU staff will issue a letter noting that no goods or services were specified or incorporated by reference in the statement of use, and granting the applicant thirty days in which to submit a verified statement clarifying the goods/services.