804 Verification and Signature
An application must include a statement that is verified by the applicant or by someone who is authorized to verify facts on behalf of an applicant. 15 U.S.C. §§1051(a)(3), 1051(b)(3); 37 C.F.R. §§2.32(b), 2.33(a), 2.193(e)(1).
In an application under §1 or §44 of the Trademark Act, a signed verification is not required for receipt of an application filing date under 37 C.F.R. §2.21(a). If the initial application does not include a proper verified statement, the examining attorney must require the applicant to submit a verified statement that relates back to the original filing date. See TMEP §§804.01–804.01(b) regarding the form of the oath or declaration, TMEP §804.02 regarding the essential allegations required to verify an application for registration of a mark, and TMEP §804.04 regarding persons properly authorized to sign a verification on behalf of an applicant.
In §66(a) applications, the verified statement is part of the international registration on file at the IB. 37 C.F.R. §2.33(e); see TMEP §§804.05, 1904.01(c).
804.01 Form and Wording of Verification in §1 or §44 Application
The format of the verification in an application under §1 or §44 of the Trademark Act may be: (1) the classical form for verifying, which includes an oath (jurat) (see TMEP §804.01(a)); or (2) a declaration under 37 C.F.R. §2.20 or 28 U.S.C. §1746 instead of an oath (see TMEP §804.01(b)).
804.01(a) Verification with Oath
The verification is placed at the end of the application. It should first set forth the venue; followed by the signer’s name (or the words "the undersigned"); then the necessary statements (TMEP §804.02); concluding with the signature. After the signature, there should be the jurat for the officer administering the oath, and an indication of the officer’s authority (such as a notarial seal).
The form of the verification depends on the law of the jurisdiction where the document is executed, so variations of the above form are acceptable. If there is a question as to the validity of the verification, the examining attorney must ask the applicant if the verification complies with the laws of the applicant’s jurisdiction. See TMEP §804.01(a)(i) regarding verifications made in a foreign country.
If the verification is notarized but does not include the notarial seal, the examining attorney must require a substitute affidavit or declaration under 37 C.F.R. §2.20.
If the verification is notarized but has not been dated, the applicant must submit either a statement from the notary public attesting to the date of signature and notarization, or a substitute affidavit or declaration under 37 C.F.R. §2.20.
804.01(a)(i) Verification Made in Foreign Country
Verification (with oath) made in a foreign country may be made: (1) before any diplomatic or consular officer of the United States; or (2) before any official authorized to administer oaths in the foreign country. In those foreign countries that are members of The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, opened for signature Oct. 5, 1961, 33 U.S.T. 883, 527 U.N.T.S. 189, a document verified before a foreign official should bear or have appended to it an apostille (i.e., a certificate issued by an official of the member country).
An apostille must be square shaped with sides at least 9 centimeters long. The following is the prescribed form for an apostille:
See 1013 TMOG 3 (Dec. 1, 1981).
If a verification is made before a foreign official in a country that is not a member of the Hague Convention, the foreign official’s authority must be proved by a certificate of a diplomatic or consular officer of the United States. 15 U.S.C. §1061.
Declarations under 37 C.F.R. §2.20 and 28 U.S.C. §1746 by foreign persons do not have to be made before a United States diplomatic or consular officer, or before a foreign official authorized to administer oaths. A declaration under 28 U.S.C. §1746 that is executed outside the United States must allege that "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct." See TMEP §804.01(b).
See http://www.hcch.net/index_en.php?act=conventions.text&cid=41 for updated information about the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents.
804.01(b) Declaration in Lieu of Oath
Under 35 U.S.C. §25, the USPTO is authorized to accept a declaration under 37 C.F.R. §2.20 or 28 U.S.C. §1746 instead of an oath. These declarations can be used whenever the Act or rules require that a document be verified or under oath.
When the language of 37 C.F.R. §2.20 or 28 U.S.C. §1746 is used with a document, the document is said to have been subscribed to (signed) by a written declaration rather than verified by oath (jurat).
When a declaration is used in lieu of an oath, the party must include in place of the oath (jurat) the statement that "all statements made of his or her own knowledge are true and all statements made on information and belief are believed to be true." The language should be placed at the end of the document.
In addition, the declaration must warn the declarant that willful false statements and the like are punishable by fine or imprisonment, or both (18 U.S.C. §1001). 35 U.S.C. §25(b). Trademark Rule 2.20 requires that the warning contain the additional language that such statements may jeopardize the validity of the application (or document) or any registration resulting therefrom. A declaration under 37 C.F.R. §2.20 should read as follows:
Instead of using the language of 37 C.F.R. §2.20, an applicant may use the language of 28 U.S.C. §1746, which provides as follows:
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
- 1 If executed outside the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature)".
- 2 If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature)".
NOTE: A declaration under Title 35 of the United States Code, which pertains specifically to the USPTO, is preferred to one under 28 U.S.C. §1746, which is a statute of general application relating to verification on penalty of perjury.
A declaration that does not attest to an awareness of the penalty for perjury is unacceptable. See 35 U.S.C. §25; In re Hoffmann-La Roche Inc., 25 USPQ2d 1539, 1540-41 (Comm’r Pats. 1992) (failure to include a statement attesting to an awareness of the penalty for perjury, which is the very essence of an oath, is not a "minor defect" that can be provisionally accepted under 35 U.S.C. §26), overruled on other grounds, In re Moisture Jamzz Inc., 47 USPQ2d 1762, 1764 (Comm’r Pats. 1997); In re Stromsholmens Mekaniska Verkstad AB, 228 USPQ 968, 970 (TTAB 1986); In re Labs. Goupil, S.A., 197 USPQ 689, 689-90 (Comm’r Pats. 1977).
The signatory must personally sign his or her name. It is unacceptable for a person to sign another person’s name to a declaration pursuant to a general power of attorney. See In re Dermahose Inc., 82 USPQ2d 1793, 1796-97 (TTAB 2007); In re Cowan, 18 USPQ2d 1407, 1409 (Comm’r Pats. 1990). If a TEAS submission is signed electronically, the person(s) identified as the signer(s) must personally enter the elements of the electronic signature. 37 C.F.R. §2.193(c). In re Dermahose, 82 USPQ2d at 1795-97. See TMEP §611.01(c) regarding signature of documents filed through TEAS.
If a declaration under 37 C.F.R. §2.20 or 28 U.S.C. §1746 is not dated, the examining attorney must require the applicant to state the date on which the declaration was signed. This statement does not have to be verified, and may be entered through a Note to the File in the record.
See TMEP §804.02 regarding the essential allegations required to verify an application for registration of a mark.
804.02 Averments Required in Verification of Application for Registration - §1 or §44 Application
The requirements for the verified statement in applications under §1 or §44 of the Trademark Act are set forth in §§1(a)(3), 1(b)(3), and 44 of the Trademark Act, 15 U.S.C. §§1051(a)(3), 1051(b)(3), and 1126, and 37 C.F.R. §§2.33, 2.34, and 2.193(e)(1). These allegations are required regardless of whether the verification is in the form of an oath (TMEP §804.01(a)) or a declaration (TMEP §804.01(b)). See TMEP §804.05 regarding the requirements for verification of a §66(a) application.
Truth of Facts Recited. Under 15 U.S.C. §§1051(a)(3)(B) and 1051(b)(3)(C), the verification of an application for registration must include an allegation that "to the best of the verifier’s knowledge and belief, the facts recited in the application are accurate." The language in 37 C.F.R. §2.20 that "all statements made of [the verifier’s] own knowledge are true, and all statements made on information and belief are believed to be true" satisfies this requirement. See 37 C.F.R. §§2.33(b)(1), (2).
Use in Commerce. If the filing basis is §1(a), the applicant must submit a verified statement that the mark is in use in commerce on or in connection with the goods or services listed in the application. If the verification is not filed with the original application, the verified statement must also allege that the mark was in use in commerce on or in connection with the goods or services listed in the application as of the application filing date. 37 C.F.R. §2.34(a)(1)(i).
Bona Fide Intention to Use in Commerce. If the filing basis is §1(b), §44(d), or §44(e), the applicant must submit a verified statement that the applicant has a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application. 15 U.S.C. §§1051(b)(3)(B), 1126(d)(2), 1126(e). If the verification is not filed with the original application, the verified statement must also allege that the applicant has had a bona fide intention to use the mark in commerce on or in connection with the goods or services listed in the application as of the application filing date. 37 C.F.R. §§2.34(a)(2), 2.34(a)(3)(i), 2.34(a)(4)(ii).
Ownership or Entitlement to Use. In an application based on §1(a), the verified statement must allege that the verifier believes the applicant to be the owner of the mark and that no one else, to the best of his or her knowledge and belief, has the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when applied to the goods or services of the other person, to cause confusion or mistake, or to deceive. 15 U.S.C. §§1051(a)(3)(A), 1051(a)(3)(D); 37 C.F.R. §2.33(b)(1).
In an application based on §1(b) or §44, the verified statement must allege that the verifier believes the applicant to be entitled to use the mark in commerce and that no one else, to the best of his or her knowledge and belief, has the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when applied to the goods or services of the other person, to cause confusion or mistake, or to deceive. See 15 U.S.C. §1051(b)(3)(A), (b)(3)(D); 37 C.F.R. §2.33(b)(2).
While the correct language for an application filed under §1(b) or §44 is "entitled to use," if a §1(b) or §44 applicant files a verification stating that the applicant is the owner of the mark, the USPTO will accept the verification, and will not require a substitute verification stating that the applicant is entitled to use the mark.
Concurrent Use. The verification for concurrent use should be modified to indicate an exception, i.e., that no one else except as specified in the application has the right to use the mark. 15 U.S.C. §1051(a)(3)(D). See TMEP §1207.04 regarding concurrent use registration.
Related-company use does not require stating an exception, because the statement that no one else has the right to use the mark refers only to adverse users and not to licensed or permitted use. See TMEP §§1201.03–1201.03(f) regarding use by related companies.
Affirmative, Unequivocal Averments Based on Personal Knowledge Required. The verification must include affirmative, unequivocal averments that meet the requirements of the Act and the rules. Statements such as "the undersigned [person signing the declaration] has been informed that the applicant is using [or has a bona fide intention to use] the mark in commerce...," or wording that disavows the substance of the declaration, are unacceptable.
Substitute Verification. If the verified statement does not include all the necessary averments, the examining attorney will require a substitute or supplemental affidavit or declaration under 37 C.F.R. §2.20.
804.03 Time Between Execution and Filing of Documents - §1 or §44 Application
Documents Must Be Filed Within a Reasonable Time After Execution
All applications and documents must be filed within a reasonable time after their execution. Under 37 C.F.R. §2.33(c), if the verified statement supporting an application for registration is not filed within a reasonable time after it is signed, the USPTO will require the applicant to submit a substitute verification or declaration under 37 C.F.R. §2.20 of the applicant’s continued use or bona fide intention to use the mark in commerce. Re-execution is also required where an allegation of use (i.e., either an amendment to allege use under 15 U.S.C. §1051(c) or a statement of use under 15 U.S.C. §1051(d)) or request for extension of time to file a statement of use is not filed within a reasonable time after the date of execution. 37 C.F.R. §§2.76(i), 2.88(k), 2.89(h); TMEP §§1104.10(b)(ii), 1108.02(b), 1109.11(c).
The USPTO considers one year between execution and filing as reasonable for all applications and all documents. The USPTO will not require a new declaration if the document is filed within one year of execution. If an application, allegation of use, or request for extension of time to file a statement of use is filed more than one year after its execution, the examining attorney will require that the applicant submit re-executed documents, or a statement, verified or supported by a declaration under 37 C.F.R. §2.20, indicating the applicant’s continued use or bona fide intention to use the mark in commerce, as appropriate.
Documents Cannot Be Filed Before They Are Executed
If an applicant files an application that is signed and lists a date of execution that is subsequent to the application filing date, the examining attorney will inquire as to the actual date on which the application was signed. If it is not otherwise necessary to issue an Office action, the examining attorney may attempt to contact the applicant by phone or e-mail to ascertain the date of signature, which may then be entered by examiner’s amendment. If the examining attorney is unable to reach the applicant, an Office action requiring the applicant to specify the date of signature must be issued.
When an application is executed in a foreign country located across the international date line, the fact that an application shows a date of execution as of the day after the application filing date is not inconsistent with its having been executed before filing. No inquiry is required in this limited situation.
804.04 Persons Authorized to Sign Verification or Declaration
37 C.F.R. §2.33(a)
The application must include a statement that is signed in accordance with the requirements of §2.193 and verified (sworn to) or supported by a declaration under §2.20 by a person properly authorized to sign on behalf of the applicant under §2.193(e)(1).
37 C.F.R. §2.193(e)(1) Verification of facts.
A verification in support of an application for registration, amendment to an application for registration, allegation of use under §2.76 or §2.88, request for extension of time to file a statement of use under §2.89, or an affidavit under section 8, 12(c), 15, or 71 of the Trademark Act must be sworn to or supported by a declaration under §2.20, signed by the owner or a person properly authorized to sign on behalf of the owner. A person who is properly authorized to verify facts on behalf of an owner is:
- (i) A person with legal authority to bind the owner (e.g., a corporate officer or general partner of a partnership);
- (ii) A person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the owner; or
- (iii) 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 owner.
The Trademark Act does not specify the appropriate person to verify facts on behalf of an applicant. The definition of a "person properly authorized to sign on behalf of the applicant" is set forth in 37 C.F.R. §2.193(e)(1). This definition applies to applications for registration, amendments to allege use, statements of use, requests for extensions of time to file statements of use, affidavits of continued use or excusable nonuse under 15 U.S.C. §1058, affidavits of incontestability under 15 U.S.C. §1065, and combined filings under 15 U.S.C. §§1058 and 1059. 37 C.F.R. §§2.33(a), 2.76(b)(1), 2.88(b)(1), 2.89(b)(3), 2.161(b). It also applies to declarations supporting amendments to dates of use, use of substitute specimens, claims of acquired distinctiveness under 15 U.S.C. §1052(f), amendments changing the basis for filing, and requests for amendment or correction of registrations under 15 U.S.C. §1057. 37 C.F.R. §2.193(e)(1).
The USPTO presumes that the verification or declaration is properly signed. Thus, the USPTO does not question the authority of the person who signs a verification unless the record or other evidence calls into question the signatory’s authority to sign. In view of the broad definition of a "person properly authorized to sign on behalf of the applicant" in 37 C.F.R. §2.193(e)(1), the fact that an application is signed by someone whose title refers to a different entity is not considered an inconsistency that warrants an inquiry as to whether the verification was properly signed.
Example: If an application is filed by "ABC Company, Inc.," and the verification is signed by an officer of "XYZ Company, Inc.," the USPTO will presume that XYZ Company, Inc. is a related company and that the signatory is properly authorized to sign on behalf of ABC Company, Inc.
The signatory should set forth his or her name and title, or state the relationship between the applicant and the person who signed the verification.
If the person signing the verification is identified as a different person than the individual named as the applicant, or as representing a different legal entity than the juristic applicant, the USPTO generally will not question whether the proper party is listed as the applicant.
Example: If the applicant is identified as Mary Smith, an individual citizen of the U.S., and the application is signed by John Smith, the USPTO will not question whether the proper party is listed as applicant.
Example: If the applicant is John Smith, an individual citizen of the U.S., and the application is signed by John Smith, President, XYZ, Inc., the USPTO will not question whether the proper party is listed as applicant.
If a qualified practitioner signs a verification on behalf of an applicant, the USPTO will not require a power of attorney or other documentation stating that the practitioner is authorized to sign.
This policy applies to both individual applicants and juristic applicants.
The broad definition of a "person properly authorized to sign on behalf of the applicant" in 37 C.F.R. §2.193(e)(1) applies only to verifications of facts by the applicant. It does not apply to powers of attorney, revocations of powers of attorney, responses to Office actions, requests for express abandonment, or changes to the correspondence address. 37 C.F.R. §§2.193(e)(2), (e)(3), (e)(9).
A non-attorney who is authorized to verify facts on behalf of an applicant under 37 C.F.R. §2.193(e)(1) is not necessarily entitled to sign responses to Office actions, or to authorize examiner’s amendments and priority actions. Preparing a document, authorizing an amendment to an application, and submitting legal arguments in response to an examining attorney’s requirement or refusal of registration all constitute examples of representation of the applicant in a trademark matter. See 37 C.F.R. §11.5(b)(2). Under 5 U.S.C. §500(d) and 37 C.F.R. §11.14(e), non-attorneys may not represent a party in a trademark proceeding before the USPTO. See TMEP §§611.03(b), 611.06, and 712–712.03 regarding signatures on responses to Office actions.
The signatory must personally sign his or her name. 37 C.F.R. §§2.193(a)(1), (c)(1). It is unacceptable for a person to sign another person’s name to a verification pursuant to a general power of attorney. See In re Cowan, 18 USPQ2d 1407, 1409 (Comm’r Pats. 1990). In a TEAS submission, the person whose name is affixed to the verification must manually enter the elements of the electronic signature. 37 C.F.R. §2.193(c)(1). The rules do not provide authority for an attorney to sign another person's declaration. In re Dermahose, 82 USPQ2d 1793, 1796 (TTAB 2007).
The name of the person who signs a document submitted in connection with an application must be set forth in printed or typed form immediately below or adjacent to the signature, or identified elsewhere in the filing (e.g., in a cover letter or other document that accompanies the filing). 37 C.F.R. §2.193(d). If the signatory’s name is not set forth in a document, the USPTO may require that it be stated for the record. This information can be entered through a Note to the File.
See TMEP §804.05 regarding verification of §66(a) applications.
804.05 Verification of §66(a) Application
In applications under §66(a) of the Act, the request for extension of protection to the United States must include a declaration that the applicant has a bona fide intention to use the mark in commerce that can be controlled by the United States Congress. The declaration must include a statement that the person making the declaration believes applicant to be entitled to use the mark in commerce, and that to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive. 15 U.S.C. §1141(f)(a); 37 C.F.R. 2.33(e). The declaration must be signed by: (1) a person with legal authority to bind the applicant; (2) a person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the applicant; or (3) a qualified practitioner who has an actual written or verbal power of attorney or an implied power of attorney from the applicant. See 37 C.F.R. §2.193(e)(1).
The verified statement in a §66(a) application is part of the international registration on file at the IB. 37 C.F.R. §2.33(e). The IB will have established that the international registration includes this declaration before it sends the request for extension of protection to the USPTO. The examining attorney should generally not issue any inquiry regarding the verification of the application. If the applicant needs to file a request for correction of the declaration, the request should be filed with the IB. However, if the applicant voluntarily files a substitute declaration with the USPTO, it will be examined according to the same standards used for examining any other declaration.