1613.05 Requirements for §71 Affidavit or Declaration of Use or Excusable Nonuse

37 C.F.R. §7.37 Requirements for a complete affidavit or declaration of use in commerce or excusable nonuse.

A complete affidavit or declaration under section 71 of the Act must:

(a) Be filed by the holder of the international registration within the period set forth in §7.36(b);
(b) Include a statement that is signed and verified (sworn to) or supported by a declaration under §2.20 of this chapter by a person properly authorized to sign on behalf of the holder, attesting to the use in commerce or excusable nonuse of the mark within the period set forth in section 71 of the Act. The verified statement must be executed on or after the beginning of the filing period specified in §7.36(b). A person who is properly authorized to sign on behalf of the holder is:
(1) A person with legal authority to bind the holder; or
(2) A person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the holder; or
(3) An attorney as defined in §11.1 of this chapter who has an actual written or verbal power of attorney or an implied power of attorney from the holder.
(c) Include the U.S. registration number;
(d)(1) Include the fee required by §7.6 for each class of goods or services that the affidavit or declaration covers;
(2) If the affidavit or declaration is filed during the grace period under section 71(a)(3) of the Act, include the grace period surcharge per class required by §7.6;
(3) If at least one fee is submitted for a multi-class registration, but the class(es) to which the fee(s) should be applied are not specified, the Office will issue a notice requiring either the submission of additional fee(s) or an indication of the class(es) to which the original fee(s) should be applied. If the required fee(s) are not submitted within the time period set out in the Office action and the class(es) to which the original fee(s) should be applied are not specified, the Office will presume that the fee(s) cover the classes in ascending order, beginning with the lowest numbered class;
(e)(1) Specify the goods or services for which the mark is in use in commerce, and/or the goods or services for which excusable nonuse is claimed under §7.37(f)(2);
(2) Specify the goods or services being deleted from the registration, if the affidavit or declaration covers less than all the goods or services or less than all the classes in the registration;
(f)(1) State that the registered mark is in use in commerce on or in connection with the goods or services in the registration; or
(2) If the registered mark is not in use in commerce on or in connection with all the goods or services in the registration, set forth the date when use of the mark in commerce stopped and the approximate date when use is expected to resume and recite facts to show that nonuse as to those goods or services is due to special circumstances that excuse the nonuse and is not due to an intention to abandon the mark; and
(g) Include a specimen showing current use of the mark for each class of goods or services, unless excusable nonuse is claimed under §7.37(f)(2). When requested by the Office, additional specimens must be provided. The specimen must meet the requirements of §2.56 of this chapter.
(h) The Office may require the holder to furnish such information, exhibits, affidavits or declarations, and such additional specimens:
(1) As may be reasonably necessary to the proper examination of the affidavit or declaration under section 71 of the Act; or
(2) For the Office to assess the accuracy and integrity of the register.
(3) The provisions of paragraph (h)(2) of this section will no longer be applied after June 21, 2014.