An intent-to-use application that survives examination and opposition does not register. It receives a notice of allowance, and from that date the applicant has six months to show the mark is actually in use in commerce.
That is the statement of use. If the mark is not yet in use, extensions are available — five of them, six months each, and then the ceiling is hard.
Thirty-six months, and not a day more
- Initial period: six months from the notice of allowance.
- Extensions: five requests, six months each.
- Maximum: thirty-six months from the notice of allowance.
There is no sixth extension. There is no discretionary relief at the end of the fifth. An applicant who reaches month thirty-six without use in commerce loses the application, and the notice of allowance lapses with it.
Why this is worse than a missed office action
A missed office action can usually be revived, because the delay was unintentional — someone did not see the action, or it went to the wrong address.
Running out of statement-of-use extensions is not an unintentional delay. The applicant filed five requests, each one acknowledging the deadline, and then did not make use of the mark. A petition arguing the final lapse was unintentional has very little to work with. In practice the mark is refiled from scratch.
What the statement has to contain
- A verified statement that the mark is in use in commerce.
- The date of first use anywhere and the date of first use in commerce.
- A specimen for each class showing the mark as used.
- The fee, per class.
Use must be real commercial use, not token use made to hold the application open. A specimen manufactured for the filing is the kind of thing that resurfaces in a later cancellation action.
How to file it
Specimens, first-use dates and when to divide an application: the statement of use guide.
Deleting what is not in use
If the mark is in use on some goods and not others, the statement can be filed for the classes in use and the rest divided out or deleted. Declaring use across the full specification when only part of it is live is a misstatement in a verified filing — and it is the single most common defect found in statements of use years after the fact.
How Sealvo tracks it
The notice of allowance sets the clock and the prosecution history records each extension, so the remaining runway is derived rather than assumed — including how many of the five requests have been used. See also extensions of time to file.