The sources of information and evidence provided in the petition should include reasonably accessible sources that can be publicly disclosed, because petitions requesting institution of expungement and reexamination proceedings will be entered in the registration record and be publicly viewable through the USPTO’s Trademark Status & Document Retrieval (TSDR) database. The number and nature of the sources a petitioner must check in order for its investigation to be considered reasonable, and the corresponding evidence that would support a prima facie case, will vary depending on the goods and/or services involved, their normal trade channels, and whether the petition is for expungement or reexamination.

For purposes of expungement and reexamination proceedings, nonuse is necessarily determined in reference to a time period that includes past activities, not just current activities. Accordingly, a petitioner’s investigation normally would include research into past usage of the mark for the goods and/or services at issue in the petition and thus may include a search for archival evidence, including cached web pages from sources such as Wayback Machine®.

A single search using an internet search engine likely would not be considered a reasonable investigation. See H.R. Rep. No. 116-645, at 15 (2020). However, a reasonable investigation does not require a showing that all of the potentially available sources of evidence were searched. Generally, an investigation that produces reliable and credible evidence of nonuse during the relevant time period may be considered sufficient.

Appropriate sources of evidence and information for a reasonable investigation may include, but are not limited to:

1. State and Federal trademark records;
2. Internet websites and other media likely to or believed to be owned or controlled by the registrant;
3. Internet websites, other online media, and publications where the relevant goods and/or services likely would be advertised or offered for sale;
4. Print sources and webpages likely to contain reviews or discussions of the relevant goods and/or services;
5. Records of filings made with or of actions taken by any State or Federal business registration or regulatory agency;
6. The registrant’s marketplace activities, including, for example, any attempts to contact the registrant or purchase the relevant goods and/or services;
7. Records of litigation or administrative proceedings reasonably likely to contain evidence bearing on the registrant’s use or nonuse of the registered mark; and
8. Any other reasonably accessible source with information establishing that the mark was never in use in commerce (expungement), or was not in use in commerce as of the relevant date (reexamination), on or in connection with the relevant goods and/or services.

37 C.F.R. §2.91(d)(2).

Evidence supporting a prima facie case of nonuse may be in the form of verified statements, screenshots from web pages, and excerpts from press releases, news articles, journals, magazines, or other publications, among other types of evidence. See 37 C.F.R. §2.91(c)(9). Examples of documentary evidence to support negative search results include screenshots or website printouts capturing the null result.

Any evidence consisting of screenshots from web pages must include the URL and access or print date. 37 C.F.R. §2.91(c)(9)(iii). Any evidence consisting of excerpts from press releases, news articles, journals, magazines, or other publications must identify the publication name and the date of publication. 37 C.F.R. §2.91(c)(9)(iv).

Petitioner may also include evidence suggesting that the verification accompanying a relevant allegation of use was improperly signed. 37 C.F.R. §2.91(c)(9)(v).