A Notice of Allowance is good news, but it is not a trademark registration. This statement of use guide explains what must happen next when an intent-to-use application reaches the point where the USPTO needs proof that your mark is actually being used in commerce.
What is a statement of use?
A Statement of Use is a sworn filing that tells the USPTO your trademark is now being used in commerce for the goods or services in your application. It is generally required after the USPTO issues a Notice of Allowance in an application filed on an intent-to-use basis.
The filing includes a declaration from the applicant, the date the mark was first used anywhere, the date it was first used in commerce, a specimen showing real-world use, and the required government fee for each class. The USPTO reviews the Statement of Use before moving the application toward registration.
The key issue is not whether you have a logo, a website, or a business plan. The question is whether consumers encounter the applied-for mark in a qualifying commercial use connected to every listed good or service.
When is a statement of use due?
The first Statement of Use deadline is six months after the USPTO issues the Notice of Allowance. If use has not begun by that date, the applicant can usually request an extension before the deadline expires.
An intent-to-use application does not stay open indefinitely. The USPTO permits a series of six-month extension requests, subject to its rules and a showing of continued good faith efforts to use the mark. In most cases, the full period available from the Notice of Allowance is up to 36 months.
Missing the deadline can result in abandonment of the application. A petition process may be available in some circumstances after abandonment, but it is not a substitute for tracking the deadline and filing on time.
The Notice of Allowance is not permission to file prematurely
A Notice of Allowance means the application cleared examination and publication without an opposition being filed, or after an opposition was resolved. It does not mean the USPTO has accepted your evidence of use.
Filing a Statement of Use before the mark is genuinely in use creates a declaration problem. A planned launch, a prototype, an internal test, or a shipment that does not qualify as use in commerce may not support the filing. The safer path depends on the facts: file when the evidence is ready, or request more time if it is not.
What counts as trademark use in commerce?
Use in commerce means bona fide commercial use of the mark on or in connection with the listed goods or services in commerce Congress can regulate. For many businesses, that involves interstate sales, sales to customers across state lines, or another legitimate connection to interstate commerce.
The rule differs between goods and services. For goods, the mark generally must appear on the product, its packaging, a label or tag, or a point-of-sale display while the goods are sold or transported in commerce. For services, the mark must be used in advertising or other materials that directly associate it with services that are actually being rendered.
A business does not need a nationwide rollout before filing. But token use created only to support a trademark application is not enough. The use must be real, bona fide commercial activity, and the applicant must be able to support the declaration if the USPTO asks questions.
What is a specimen, and why do specimens get refused?
A specimen is evidence showing how customers see the trademark used with the identified goods or services. The USPTO can refuse a Statement of Use when the specimen does not show the mark, does not match the mark in the application, or does not create a direct connection between the mark and the listed offering.
For goods, useful specimens often include a product label, packaging, hangtag, or a product webpage that shows the mark near the goods and provides a way to buy them. A digitally altered mockup, a business card, or an invoice will often fail because it does not show the mark as consumers encounter it on the goods or at their point of sale.
For services, a website, brochure, advertisement, or sign can work when it displays the mark and clearly identifies the services being offered. Merely showing the mark as a company name, without connecting it to the specific services in the application, may not be sufficient.
The specimen must match the application
The specimen must support the exact mark and the particular goods or services claimed. A specimen for one product does not automatically support a broad category of products, and a specimen showing consulting may not support separate software services or retail services listed in the application.
This is where early identification of goods and services matters. If the application was drafted too broadly, a business may have a valid brand but lack acceptable use for every item in the application. Deleting unsupported items can be appropriate. Expanding the identification after filing is generally not allowed.
Statement of Use or extension request: which filing fits?
A Statement of Use is appropriate when qualifying use has begun and you have a specimen for each class. An extension request is appropriate when the business has not yet begun qualifying use or when the available evidence is not ready to support a sworn filing.
| Filing choice | When it fits | What you submit | Main consideration | | — | — | — | — | | Statement of Use | The mark is in qualifying use for all claimed goods or services in a class | Declaration, dates of use, specimen, and government fee | The USPTO may examine and refuse an inadequate specimen or unsupported claim | | Extension request | Use has not begun, or evidence is not yet sufficient | Request and required fee, with a continuing good-faith basis | Must be filed before the current deadline and is limited by USPTO rules | | Delete goods or services, then file | Use exists for only part of the original identification | Revised identification plus Statement of Use materials | Deleted items generally cannot be added back to that application later |
The right answer can differ by class. If an application covers multiple classes, use and specimen evidence must be evaluated separately for each one. A business may be ready to file for one class and need more time for another.
Can you amend an intent-to-use application instead?
Before publication, an intent-to-use applicant that has started qualifying use may be able to file an Amendment to Allege Use. After a Notice of Allowance, the corresponding filing is a Statement of Use.
Both filings require similar proof of use, but the timing is different. An Amendment to Allege Use is filed while the application is still being examined. A Statement of Use is filed after the Notice of Allowance. In either case, the specimen and use claim must be accurate on the filing date.
What happens after you file the Statement of Use?
The USPTO examines the filing to determine whether the declaration, dates, identification, and specimen meet its requirements. If the filing is accepted, the application can proceed toward registration; if the examiner finds a problem, the USPTO may issue an office action explaining the refusal or requirement.
Common issues include an unacceptable specimen, a specimen that does not match the applied-for mark, dates that are incomplete or inconsistent, and use evidence that does not support all listed goods or services. An office action has a response deadline. Ignoring it can lead to abandonment.
A response may involve legal argument, a substitute specimen that was in use by the applicable deadline, deletion of unsupported items, or another permitted correction. A substitute specimen cannot simply be created after the Statement of Use filing date to cure an earlier lack of use.
How does a Statement of Use differ from trademark maintenance?
A Statement of Use is part of the path to registration for an intent-to-use application. Maintenance filings happen after registration and are used to show that the registered mark remains in use.
For example, a Section 8 declaration is generally due between the fifth and sixth years after registration, and renewals are required at later intervals. Those filings also require specimens, but they serve a different purpose and follow different statutory deadlines. A registration is not self-maintaining simply because the business continues operating.
For business owners in New Jersey and across the country, the practical lesson is to retain clear records of how the mark appears in the marketplace. Product photos, packaging files, archived webpages, sales records, and launch dates can make both post-allowance and maintenance decisions easier to assess.
FAQ
Do I need a Statement of Use for every trademark application?
No. A Statement of Use is generally required only for applications filed on an intent-to-use basis that receive a Notice of Allowance. Applications filed based on existing use in commerce use a different process at the initial filing stage.
Can I use a social media post as a specimen?
Sometimes, but it depends on what the post shows. It must display the mark and directly connect it to the identified goods or services; for goods, it generally should also function as a point-of-sale display or otherwise show purchasing information.
Can I file a Statement of Use if I have only sold one item?
A small volume of sales is not automatically disqualifying, but the use must be bona fide commercial use rather than a transaction created solely to support the application. The nature of the business and the evidence matter.
What if my product has launched but my service has not?
If the application includes both goods and services, you may need to delete unsupported items, seek an extension, or assess whether separate class-by-class filings are available. The filing should only claim use that exists for the specific identification.
Can I change my trademark when I file the Statement of Use?
Only limited changes may be permitted. A material change to the mark usually requires a new application because the specimen must show substantially the same mark that was originally filed.
A Statement of Use is a short filing with meaningful consequences. Before signing it, compare the application line by line against the way customers actually see and buy your goods or services, then address any gap before the deadline forces a decision.