Declarations of Use

Proposed teas declarations of use may have merit, but needs work

I like the idea of increased solemnity of declarations for new and infrequent filers, and particularly, for pro se applicants. The current teas formatting of the declaration averments are often lost on the declarant/applicant where diligent trademark counsel has not gone over the declaration statements prior to signing. Having an enhanced format (e.g., check the box of declaration statements format) could be a good way to more clearly state (and hopefully be more readily understood) the appropriate declaration mandated by the regulations.

 

That said, the proposed 'check the box' declaration components found in this particular idea scale submission do not mirror the declaration requirements found in the regulations. For example, each of the proposed declaration screens include "To the best of the signatory's knowledge, information, and belief, formed after an inquiry reasonably under the circumstances, the allegation and other factual contentions made above have evidentiary support." This is not found in the declaration statements found in the regulations. Furthermore, the declaration statements require "that the facts set forth in the application are true" (See e.g., 37 C.F.R. 2.33), but are not found in the mock up declarations. This is different than declaration verification statement of 37 CFR 2.20 (that all statements are made on information and belief are believed to be true), which also needs to be included.

 

In my opinion, the declaration language in the regulations is perfectly clear and can be broken down per each declarative clause along with the verification statement of 37 CFR 2.20. For example, the verified statement for a new trademark filed under Section 1(a) requires:

The Applicant believes:

1. it is the owner of the mark;

2. that the mark is in use in commerce;

3. that to the best of the signatory's knowledge and belief, no other person has the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when applied to the goods or service of such other person, to cause confusion or mistake, or to deceive;

4. that the specimen (per class) shows the mark as used on or in connection with the goods or services (per class); and

5. that the facts set forth in the application are true.

37. C.F.R. 2.33

 

[+ declaration statement as set forth in 37 C.F.R. 2.20]

 

The declarant then reads through each statement and clicks through (where some affirmative dot or mark, e.g., an "x") appears prior to the signatory of the declarant.

 

Another option to this increased solemnity declaration in teas is to break down each good/service (or class of good/service) in similar "click through" at the time a 1(a) application is filed or an AAU/SOU is filed or for Section 8/71 declarations of use/continued use.

 

The goal is not to provide more work to the trademark bar, but to increase the solemnity of the declarations in a quick and easy format that adds only minimal amount more for the declarant to review.

 

It is important that the correct declaration be applied to the correct teas form and that the declarant understands that all statements must be true (per declaration). Otherwise, the declarant is left trying to cobble together what declaration components must be checked. Such a cobbled declaration option will not meet the goal as I understand it.

 

If, however, the goal is met (with the appropriate revisions such as I have noted above), I believe that the USPTO will have a more accurate register over time with or without the inclusion of other "deadwood" options. Thank you for your consideration.

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Idea No. 113