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An affidavit of use is filed in conjunction with a Section 9 renewal application in order to keep a registered trademark valid in the United States. The affidavit provides proof that the trademark in question is still being used in the capacity that was indicated on the original application. This affidavit must be filed by the owner of the trademark. Initial registration and renewals for trademarks are handled by the United States Patent and Trademark Office. A trademark, or logo, is not required to be registered in the U.S., but there are advantages to registering.
Trademarks can be designs, letters, or words. Though the same unregistered trademark can be used in different parts of the country, a registered trademark must be unique. Additionally, the federal court will hear cases only regarding registered trademarks. The specifications for an affidavit of use appear in Section 8 of the Lanham Act, so these affidavits are also called Section 8 affidavits.
When initially registering a trademark, the applicant must provide a drawing of the mark, a listing of goods and services the mark will be used for, and a specimen, or sample, of what the mark will be used on. Only those goods and services that are listed in the original application for the trademark can be listed on the affidavit of use. The U.S. Patent and Trademark Office will not legally recognize any goods and services using the mark that are not on listed on the original application.
An affidavit of use must be filed after the fifth year but no later than the sixth year after the initial application for the trademark is approved. Additional affidavits must be filed every 10 years for as long as the mark is in use. Prior to 16 November 1989, additional renewals were filed only every 20 years. For a late fee, a renewal can be filed as much as six months after the trademark technically expires.
A declaration of excusable nonuse is also filed under a Section 8 affidavit. This declaration states that though a trademark is not currently in use, its nonuse is because of circumstances beyond the owner's control and is only temporary. In order to be considered, the applicant must give the dates that the mark was terminated and expected to be reinstated, reasons the mark was out of use and steps taken to reinstate the mark. Possible reasons for excusable nonuse are trade embargoes or extensive replacement or repair of equipment if that repair is mandatory. If the mark go unused for three years without the owner trying to reinstate it, it is considered abandoned.
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