If a specimen for any class is omitted or is deficient, the holder must file a substitute specimen, together with an affidavit or declaration that the substitute specimen was in use in commerce on or in connection with the goods or services during the relevant period specified in §71 of the Act, 15 U.S.C. §1141k, as follows:

1. (1) If the §71 affidavit or declaration was filed during the sixth year after the date of registration in the United States, the affidavit or declaration supporting use of the substitute specimen must state that the substitute specimen was in use in commerce before the expiration of the sixth year after the date of registration, if accurate; or
2. (2) If the §71 affidavit or declaration was filed within one year before the end of any ten-year period after the date of registration in the United States, the affidavit or declaration supporting use of the substitute specimen must state that the substitute specimen was in use in commerce within one year before the end of the ten-year period after the date of registration, if accurate; or
3. (3) If the §71 affidavit or declaration was filed during the grace period, the affidavit or declaration supporting use of the substitute specimen must state that the substitute specimen was in use in commerce before the expiration of the grace period, if accurate.

If the §71 affidavit or declaration was filed during the relevant period specified in §71(a) of the Act (i.e., during the sixth year after the date of registration in the United States, or within one year before the end of any ten-year period after the date of registration in the United States), the substitute specimen may be filed before expiration of the relevant period for no fee, or after expiration of the relevant period with the deficiency surcharge required under §71(c) of the Act. If the §71 affidavit or declaration was filed during the grace period, the substitute specimen may be filed before expiration of the grace period for no fee, or after expiration of the grace period with the deficiency surcharge. See TMEP §1613.04 regarding the deadlines for filing §71 affidavits or declarations and §§1613.17-1613.17(c) for information about the procedures, deadlines, and surcharge for correcting deficiencies.

While a substitute specimen and supporting affidavit or declaration may be filed after the expiration of the period specified in §71 of the Act, the supporting affidavit or declaration must attest to use of the specimen within the time period specified in §71 of the Act. Therefore, if the affidavit or declaration supporting the substitute specimen does not state that the specimen was in use in commerce prior to the end of the relevant period specified in §71 of the Act, the USPTO will not accept the affidavit or declaration, and the registration will be cancelled unless: (1) the owner deletes the class(es) for which no proper specimen was submitted and pays the fee(s) for deleting such classes from the registration during pendency of the §71 affidavit or declaration (see 37 C.F.R. §7.6(a)(6)(iii), (iv) ); and (2) other class(es) supported by proper specimens remain in the registration. See TMEP §1613.09(b) regarding fees for deleting goods/services/classes from a registration during pendency of a §71 affidavit or declaration.

See 37 C.F.R. §2.193(e)(1) and TMEP §611.03(a) regarding the proper person to sign an affidavit or declaration.