1716.02(a) Basis for the Petition
A petition for expungement must allege that the mark "has never been used in commerce on or in connection with some or all of the goods and/or services recited in the registration." 37 C.F.R. §2.91(a)(1).
A petition for reexamination must allege that the trademark "was not in use in commerce on or in connection with some or all of the goods and/or services recited in the registration on or before the relevant date," which, for any particular goods and/or services, is determined as follows:
- In a use-based application for registration of a mark with an initial filing basis under §1(a) for the goods and/or services listed in the petition, and not amended at any point to be filed pursuant to §1(b), the relevant date is the filing date of the application; or
- In an intent-to-use application for registration of a mark with an initial filing basis or amended basis of §1(b) for the goods and/or services listed in the petition, the relevant date is the later of the filing date of an amendment to allege use identifying the goods and/or services listed in the petition, pursuant to §1(c), or the expiration of the deadline for filing a statement of use for the goods and/or services listed in the petition, pursuant to §1(d), including all approved extensions thereof.