Trademark Incontestability Section 15

Affidavit of Incontestability for your Registered Trademark under Section 15

Affidavit of Incontestability for your Registered Trademark under Section 15

At the five-year mark from your trademark becoming a Registered Trademark on the Principal Register, you must renew the trademark, with a affidavit or declaration that you have continued to use the mark throughout that five year period, under §8. But you also have the opportunity (and option) to file a Affidavit  of Incontestability under §15 (TMEP 1605).

What is Section 15 of Trademark Act?

In order to file a Declaration of Incontestability, the mark must have been in continued use for the past five years and still be in use. It provides conclusive evidence of the validity of the registered mark and its registration, of the registrant’s ownership of the mark, and of the owner’s exclusive right to use the registered mark in commerce (subject to certain defenses and exceptions) should you assert the trademark against a competitor, or have your mark challenged in Court.

The USPTO does not “accept” §15 declarations; instead, it reviews the declaration to determine whether it is consistent with the requirements of the statute, such as being signed and filed at the appropriate time.

When the Declaration of Incontestability complies with the Statute, the USPTO updates its records to acknowledge receipt of the affidavit or declaration and sends a notice of acknowledgment to the owner of the registration. The acceptance of the Declaration is not itself determinative of whether the mark is incontestable, rather that is a questions that may be settled in Court should the need arise.

If the §15 affidavit or declaration does not comply with the statute and rules, the USPTO issues a written action notifying the owner of any inconsistency or error, but does not require correction.

Since the time limits for renewal and incontestability coincide, clients usually file the renewal and Declaration of Incontestability at the same time. The declaration of continued use and renewal under section 8 has an official fee of $125 per class ($200 per class if you are paper filing), while the Declaration of Incontestability has a fee of $200 per class e-filing ($300 per class if you are paper filing), along with attorneys’ fees.

 

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