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A requirement for trademark registration is that the applicant is “using” the mark in commerce. The applicant must provide an acceptable form of evidence of use or “proof of use” of a trademark in connection with the goods or services claimed in the application. Statements of use are also called Section 8 Declarations.

If an applicant files a use-based application “proof of use” must be submitted with the application.

If an applicant files an “intent to use” application “proof of use” must be submitted by an Affidavit of Use or Amendment to Allege Use before the application will be allowed registration.

Proof of use (Section 8 Declaration) is also required in certain post registration filings such as in connection with:

  • Section 9 Declarations for trademark renewals;
  • Section 15 affidavit of incontestability between the fifth and sixth year after registration.

For Section 8 Declarations with Section 9 Declarations for trademark renewals, only a single proof of use per class is required. The proof should show the real world use of the mark on the goods or packaging, catalogue or instruction manuals on labels and tags. Examples of proof of use in conjunction with service marks include: photographs of signage, newspaper ads, billboard signs, radio and television ads, letterhead and the like.

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