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15 U.S.C. § 1066b — Ex parte reexamination

Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1066b — Ex parte reexamination

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Stable record: federal_law:legal_authorities:record_usc_6d23f76180a68fd7963d8a01
Source file: Laws/federal/codes/united-states-code/title-15/section-1066b-ex-parte-reexamination--d9da573397.md
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Source location: Title 15, Chapter 22, § 1066b; chapter-022-trademarks.md

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**(a) Petition for reexamination** Any person may file a petition to reexamine a registration of a mark on the basis that the mark was not in use in commerce on or in connection with some or all of the goods or services recited in the registration on or before the relevant date. **(b) Relevant date** In this section, the term “relevant date” means, with respect to an application for the registration of a mark with an initial filing basis of— (1) [section 1051(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051/a&num=0&edition=prelim) and not amended at any point to be filed pursuant to [section 1051(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051/b&num=0&edition=prelim), the date on which the application was initially filed; or (2) [section 1051(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051/b&num=0&edition=prelim) or amended at any point to be filed pursuant to [section 1051(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051/b&num=0&edition=prelim), the date on which— (A) an amendment to allege use under [section 1051(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051/c&num=0&edition=prelim) was filed; or (B) the period for filing a statement of use under [section 1051(d) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051/d&num=0&edition=prelim) expired, including all approved extensions thereof. **(c) Requirements for the petition** A petition filed under subsection (a), together with any supporting documents, shall— (1) identify the registration that is the subject of the petition; (2) identify each good and service recited in the registration for which it is alleged that the mark was not in use in commerce on or in connection with on or before the relevant date; (3) include a verified statement that sets forth— (A) the elements of the reasonable investigation the petitioner conducted to determine that the mark was not in use in commerce on or in connection with the goods and services identified in the petition on or before the relevant date; and (B) any additional facts that support the allegation that the mark was not in use in commerce on or before the relevant date on or in connection with the identified goods and services; (4) include supporting evidence on which the petitioner relies; and (5) be accompanied by the fee prescribed by the Director. **(d) Initial determination; institution** (1) **Prima facie case determination, institution, and notification** — The Director shall, for each good or service identified under subsection (c)(2), determine whether the petition sets forth a prima facie case of the mark having not been in use in commerce on or in connection with each such good or service, institute an ex parte reexamination proceeding for each good or service for which the Director determines that the prima facie case has been set forth, and provide a notice to the registrant and petitioner of the determination of whether or not the proceeding was instituted. Such notice shall include a copy of the petition and any supporting documents and evidence that were included with the petition. (2) **Reasonable investigation guidance** — The Director shall promulgate regulations regarding what constitutes a reasonable investigation under subsection (c)(3) and the general types of evidence that could support a prima facie case that the mark was not in use in commerce on or in connection with a good or service on or before the relevant date, but the Director shall retain discretion to determine whether a prima facie case is set out in a particular proceeding. (3) **Determination by Director** — Any determination by the Director whether or not to institute a reexamination proceeding under this section shall be final and non-reviewable, and shall not prejudice any party’s right to raise any issue and rely on any evidence in any other proceeding, except as provided in subsection (j). **(e) Reexamination procedures** The procedures for reexamination shall be the same as the procedures established under [section 1062(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1062/b&num=0&edition=prelim) except that the Director shall promulgate regulations establishing and governing a proceeding under this section, which may include regulations that— (1) set response and extension times particular to this type of proceeding, which, notwithstanding [section 1062(b)(3) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1062/b/3&num=0&edition=prelim), need not be extendable to 6 months; (2) set limits governing the timing and number of petitions filed for a particular registration or by a particular petitioner or real parties in interest; and (3) define the relation of a reexamination proceeding under this section to other proceedings concerning the mark. **(f) Registrant’s evidence of use** A registrant’s documentary evidence of use shall be consistent with when a mark shall be deemed to be in use in commerce under the definition of “use in commerce” in [section 1127 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1127&num=0&edition=prelim), but shall not be limited in form to that of specimens as provided in [section 1051(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051/a&num=0&edition=prelim). **(g) Examiner’s decision; order to cancel** For each good or service for which it is determined that the registration should not have issued because the mark was not in use in commerce on or before the relevant date, the examiner shall find that the registration should be cancelled for each such good or service. Unless overturned on review of the examiner’s decision, the Director shall issue an order cancelling the registration, in whole or in part, after the time for appeal has expired or any appeal proceeding has terminated. **(h) Reexamination by Director** (1) **In general** — The Director may, on the Director’s own initiative, institute an ex parte reexamination proceeding if the Director discovers information that supports a prima facie case of the mark having not been used in commerce on or in connection with some or all of the goods or services covered by the registration on or before the relevant date. The Director shall promptly notify the registrant of such determination, at which time reexamination shall proceed according to the same procedures established pursuant to subsection (e). If the Director determines, based on the Director’s own initiative, to institute an ex parte reexamination proceeding, the Director shall transmit or make available the information that formed the basis for that determination as part of the institution notice. (2) **Rule of construction** — Nothing in this subsection shall be construed to limit any other authority of the Director. **(i) Time for institution** A petition for ex parte reexamination may be filed, or the Director may institute on the Director’s own initiative an ex parte reexamination proceeding, at any time not later than 5 years after the date of registration of a mark registered based on use in commerce. **(j) Limitation on later ex parte reexamination proceedings** (1) **No co-pending proceedings** — With respect to a particular registration, while an ex parte reexamination proceeding is pending, no later ex parte reexamination proceeding may be instituted with respect to the same goods or services that are the subject of a pending ex parte reexamination proceeding. (2) **Estoppel** — With respect to a particular registration, for any goods or services previously subject to an instituted ex parte reexamination proceeding for which, in that proceeding, it was determined that the registrant had used the mark for particular goods or services before the relevant date, and the registration was not cancelled as to those goods or services, no further ex parte reexamination proceedings may be initiated as to those goods or services, regardless of the identity of the petitioner. **(k) Supplemental register** The provisions of subsection (b) apply, as appropriate, to registrations under [section 1091 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1091&num=0&edition=prelim). Nothing in this section shall be construed to limit the timing of a cancellation action under [section 1092 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1092&num=0&edition=prelim).

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1127 — Construction and definitions; intent of chapter

In the construction of this chapter, unless the contrary is plainly apparent from the context—

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1091 — Supplemental register

**(a) Marks registerable** In addition to the principal register, the Director shall keep a continuation of the register provided in paragraph (b) of section 1 of the Act of March 19, 1920, entitled “An Act to give effect to certain provisions of the convention for the protection of trademarks and commercial names, made and signed in the city of Buenos Aires, in the Argentine Republic, August 20, 1910, and for other purposes”, to be called the supplemental register. All marks capable of distinguishing applicant’s goods or services and not registrable on the principal register provided in this chapter, except those declared to be unregistrable under subsections (a), (b), (c), (d), and (e)(3) of [section 1052 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1052&num=0&edition=prelim), which are in lawful use in commerce by the owner thereof, on or in connection with any goods or services may be registered on the supplemental register upon the payment of the prescribed fee and compliance with the provisions of subsections (a) and (e) of [section 1051 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051&num=0&edition=prelim) so far as they are applicable. Nothing in this section shall prevent the registration on the supplemental register of a mark, capable of distinguishing the applicant’s goods or services and not registrable on the principal register under this chapter, that is declared to be unregistrable under [section 1052(e)(3) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1052/e/3&num=0&edition=prelim), if such mark has been in lawful use in commerce by the owner thereof, on or in connection with any goods or services, since before Decembe

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1092 — Publication; not subject to opposition; cancellation

Marks for the supplemental register shall not be published for or be subject to opposition, but shall be published on registration in the Official Gazette of the Patent and Trademark Office. Whenever any person believes that such person is or will be damaged by the registration of a mark on the supplemental register— (1) for which the effective filing date is after the date on which such person’s mark became famous and which would be likely to cause dilution by blurring or dilution by tarnishment under [section 1125(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1125/c&num=0&edition=prelim); or (2) on grounds other than dilution by blurring or dilution by tarnishment, such person may at any time, upon payment of the prescribed fee and the filing of a petition stating the ground therefor, apply to the Director to cancel such registration. The Director shall refer such application to the Trademark Trial and Appeal Board which shall give notice thereof to the registrant. If it is found after a hearing before the Board that the registrant is not entitled to registration, or that the mark has been abandoned, the registration shall be canceled by the Director, unless the Director reconsiders the decision of the Board, and modifies or sets aside, such decision. However, no final judgment shall be entered in favor of an applicant under [section 1051(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1051/b&num=0&edition=prelim) before the mark is registered, if such applicant cannot prevail without establishing constructive use pursuant to [section 1057(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1057/c&num=0&edition=prelim).

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1064 — Cancellation of registration

A petition to cancel a registration of a mark, stating the grounds relied upon, may, upon payment of the prescribed fee, be filed as follows by any person who believes that he is or will be damaged, including as a result of a likelihood of dilution by blurring or dilution by tarnishment under [section 1125(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1125/c&num=0&edition=prelim), by the registration of a mark on the principal register established by this chapter, or under the Act of March 3, 1881, or the Act of February 20, 1905: (1) Within five years from the date of the registration of the mark under this chapter. (2) Within five years from the date of publication under [section 1062(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1062/c&num=0&edition=prelim) of a mark registered under the Act of March 3, 1881, or the Act of February 20, 1905. (3) At any time if the registered mark becomes the generic name for the goods or services, or a portion thereof, for which it is registered, or is functional, or has been abandoned, or its registration was obtained fraudulently or contrary to the provisions of [section 1054 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1054&num=0&edition=prelim) or of subsection (a), (b), or (c) of [section 1052 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1052&num=0&edition=prelim) for a registration under this chapter, or contrary to similar prohibitory provisions of such prior Acts for a registration under such Acts, or if the registered mark is being used by, or with the permission of, the registrant so as to misrepresent the source of the goods or service

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1066a — Ex parte expungement

**(a) Petition** Notwithstanding sections 1057(b) and 1072 of this title, and subsections (a) and (b) of [section 1115 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1115&num=0&edition=prelim), any person may file a petition to expunge a registration of a mark on the basis that the mark has never been used in commerce on or in connection with some or all of the goods or services recited in the registration. **(b) Contents of petition** A petition filed under subsection (a), together with any supporting documents, shall— (1) identify the registration that is the subject of the petition; (2) identify each good or service recited in the registration for which it is alleged that the mark has never been used in commerce; (3) include a verified statement that sets forth— (A) the elements of the reasonable investigation the petitioner conducted to determine that the mark has never been used in commerce on or in connection with the goods and services identified in the petition; and (B) any additional facts that support the allegation that the mark has never been used in commerce on or in connection with the identified goods and services; (4) include any supporting evidence on which the petitioner relies; and (5) be accompanied by the fee prescribed by the Director. **(c) Initial determination; institution** (1) **Prima facie case determination, institution, and notification** — The Director shall, for each good or service identified under subsection (b)(2), determine whether the petition sets forth a prima facie case of the mark having never been used in commerce on or in connection with each such good or service, institute an ex parte expungement proceeding for each good or service for which the Director determines that

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Federal law — U.S. Code and appendices · legal_authorities

15 U.S.C. § 1066b — Ex parte reexamination

Page 1297 TITLE 15—COMMERCE AND TRADE § 1066b or the Director may institute on the Direc- tor’s own initiative an ex parte expungement proceeding of a registration under subsection (h), at any time following the expiration of 3 years after the date of registration and before the expiration of 10 years following the date of registration. (2) Exception Notwithstanding paragraph (1), for a period of 3 years after December 27, 2020, a petition for expungement of a registration under sub- section (a) may be filed, or the Director may institute on the Director’s own initiative an ex parte expungement proceeding of a reg- istration under subsection (h), at any time fol- lowing the expiration of 3 years after the date of registration. (j) Limitation on later ex parte expungement proceedings (1) No co-pending proceedings With respect to a particular registration, while an ex parte expungement proceeding is pending, no later ex parte expungement pro- ceeding may be instituted with respect to the same goods or services that are the subject of a pending ex parte expungement proceeding. (2) Estoppel With respect to a particular registration, for goods or services previously subject to an in- stituted expungement proceeding for which, in that proceeding, it was determined that the registrant had used the mark for particular goods or services, as relevant, and the reg- istration was not cancelled as to those goods or services, no further ex parte expungement proceedings may be initiated as to those goods or services, regardless of the identity of the petitioner. (k) Use in commerce requirement not altered Nothing in this section shall affect the re- quirement for use in commerce of a mark reg- istered under section 1051(a) or 1091 of this title. (July

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