1604.08 Execution of Affidavit or Declaration
1604.08(a) Persons Who May Sign Affidavit or Declaration
Under 37 C.F.R. §2.161(b), the §8 affidavit or declaration must include a statement that is signed and verified (sworn to) or supported by a declaration under 37 C.F.R. §2.20 by a person properly authorized to sign on behalf of the owner. A person who is "properly authorized to sign on behalf of the owner" is: (1) a person with legal authority to bind the owner; (2) a person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the owner; or (3) an attorney as defined in 37 C.F.R. §11.1 who has an actual written or verbal power of attorney or an implied power of attorney from the owner. 37 C.F.R. §2.193(e)(1).
Generally, the USPTO does not question the authority of the person who signs a verification unless there is an inconsistency in the record as to the signatory’s authority to sign. See TMEP §611.03(a).
1604.08(b) Date of Execution of Affidavit or Declaration
Under 37 C.F.R. §2.161(b), the verified statement must be executed on or after the beginning of the relevant filing period specified in §8 of the Act, 15 U.S.C. §1058, (i.e., on or after the fifth anniversary of the date of registration or publication under §12(c), on or after the beginning of the one-year period before the end of each ten-year period after the date of registration, or during the available grace period). Because the purpose of the affidavit or declaration is to attest to the use or excusable nonuse of the mark within the time periods specified in §8 of the Act, the affidavit or declaration cannot be executed before these time periods begin.
An affidavit or declaration filed within the period specified in §8 of the Act, but executed before that period, is deficient. The owner of the registration will be required to submit a substitute or supplemental affidavit or declaration attesting to use in commerce (or excusable nonuse) on or in connection with the goods/services/collective membership organization within the relevant period specified in §8 of the Act.
If the prematurely executed §8 affidavit or declaration was filed during the relevant period specified in §8(a) of the Act (i.e., during the sixth year after the date of registration or publication under §12(c) of the Trademark Act, or within one year before the end of any ten-year period after the date of registration), the substitute affidavit or declaration may be filed before expiration of the relevant period for no fee, or after expiration of the relevant period with the deficiency surcharge required under §8(c) of the Act. If the prematurely executed §8 affidavit or declaration was filed during the grace period, the substitute affidavit or declaration may be filed before expiration of the grace period for no fee, or after expiration of the grace period with the deficiency surcharge. See TMEP §1604.04 regarding the deadlines for filing §8 affidavits or declarations and TMEP §§1604.17 et seq. for information about the procedures, deadlines, and surcharge for correcting deficiencies.
Date of Execution Omitted. If the §8 affidavit or declaration is signed, but the date of execution is omitted, the Post Registration staff must require that the owner of the registration set forth the date of execution for the record. If the affidavit or declaration was executed within the relevant filing period, no deficiency fee is required. If there are no other outstanding issues, the owner may provide the Post Registration staff with the date by telephone or e-mail and the Post Registration staff must enter a Note to the File in the record. If the affidavit or declaration was not executed within the relevant filing period, the affidavit or declaration is deficient, and the owner must submit a substitute or supplemental affidavit or declaration, as discussed above.
1604.08(c) Signature of Electronically Transmitted Affidavit or Declaration
See 37 C.F.R. §2.193(c) and TMEP §611.01(c) regarding signature of an affidavit or declaration filed through TEAS.
1604.08(d) Form and Wording of Verification
The format of the verification 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)). See 37 C.F.R. §2.2(n)