Documentary evidence of use provided by the registrant need not be the same as that required under the USPTO’s rules of practice for specimens of use under §1(a), but must be consistent with the definition of "use in commerce" in Section 45 of the Trademark Act, 15 U.S.C. §1127, and in relevant case law. 15 U.S.C. §§1066a(e), 1066b(f); 37 C.F.R. §2.93(b)(7); See TMEP §§901-901.03 regarding use in commerce.

Evidence must be accompanied by a verified statement. Any evidence of use must be accompanied by a verified statement signed by someone with firsthand knowledge of the facts to be proved, setting forth in numbered paragraphs factual information about the use of the mark in commerce, including a description of the supporting evidence and how the evidence demonstrates use of the mark in commerce as of any relevant date for the goods and/or services at issue. 37 C.F.R. §2.93(b)(7). Evidence must be labeled, and an itemized index of the evidence must be provided such that the particular goods and/or services supported by each item submitted as evidence of use are clear. Id.

Types of evidence. Although testimonial evidence may be submitted, it should be supported by corroborating documentary evidence. In most cases, the documentary evidence of use will include specimens of use, but there may be situations where, for example, specimens for particular goods and/or services are no longer available, even if they may have been available at the time the registrant filed an allegation of use. In these cases, the registrant may provide additional evidence and explanations, supported by declaration, to demonstrate how the mark was used in commerce at the relevant time. Generally, because the registration file has already been considered in instituting the proceeding based on a prima facie case of nonuse, merely resubmitting the same specimen of use previously submitted in support of registration or maintenance thereof, or a verified statement alone, without additional supporting evidence, will likely be insufficient to rebut a prima facie case of nonuse.

Evidence must demonstrate use during the relevant time period. For reexamination proceedings, the registrant’s evidence of use must demonstrate use of the registered mark in commerce on or in connection with the goods and/or services at issue on or before the relevant date established under 37 C.F.R. §2.91(a)(2). See 37 C.F.R. §2.93(b)(6)(i). Specifically, if registration of the mark was based on an application with an initial filing basis under §1(a) for the goods and/or services listed in the petition or subject to a Director-initiated proceeding, and not amended at any point to be filed pursuant to §1(b), the relevant date is the filing date of the application. 37 C.F.R. §2.91(a)(2)(i). Or, if registration of the mark was based on an application with an initial filing basis or amended basis of §1(b) for the goods and/or services listed in the petition or subject to a Director-initiated proceeding, the relevant date is the later of the filing date of an amendment to allege use identifying the goods and/or services listed in the petition, pursuant to §1(c), or the expiration of the deadline for filing a statement of use for the goods and/or services listed in the petition, pursuant to §1(d), including all approved extensions thereof. 37 C.F.R. §2.91(a)(2)(ii). The relevant dates set forth in 37 C.F.R. §2.91(a)(2)(i) -(ii) are considered for each good and/or service identified in a petition for reexamination. Under 37 C.F.R. §2.92(b), a Director-initiated proceeding may be instituted for the same reasons as those appropriate for a petition, and the relevant dates are therefore the same for a Director-initiated proceeding, even though there was no petition.

For expungement proceedings, the registrant’s evidence of use must show that the use occurred before the filing date of the petition to expunge under 37 C.F.R. §2.91(a), or before the date the proceeding was instituted by the Director under 37 C.F.R. §2.92(b), as appropriate. 37 C.F.R. §2.93(b)(5)(i).

Evidence must demonstrate use in connection with the identified goods and/or services in the registration. Evidence of use of the mark on or in connection with goods or services not at issue in the proceeding does not demonstrate relevant use of the mark in commerce. See In re Locus Link USA, No. 2022-100137E, 2024 TTAB LEXIS 225, at *14-15 (2024) (finding nonuse where the registrant’s evidence showed use of the mark in connection with components for evaporative coolers, but the identification as set forth in the registration covers evaporative coolers that are themselves component parts of air-cooling systems); Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports Goods Co., Can. No. 92079409, 2024 TTAB LEXIS 289, at *28 (2024).

Specimens of use accepted during prosecution of the application. An examining attorney’s acceptance of specimens of use during the prosecution of an application that matures into a registration does not preclude an evaluation of whether such mark was in use in commerce in an expungement or reexamination proceeding, nor does it control the ultimate question of use. See In re Locus Link USA, No. 2022-100137E, 2024 TTAB LEXIS 225, at *17 (2024). The USPTO is not bound by prior decisions of an examining attorney in a subject application that matured into a registration. See id.

Bona fide use in the ordinary course of trade. Registrant’s use of the mark on the goods and/or services must be bona fide use in the ordinary course of trade and not merely to reserve a right in a mark. 15 U.S.C. §1127. See TMEP §901.02 regarding bona fide use in the ordinary course of trade. The examining attorney will consider whether the evidence of record shows bona fide use in the ordinary course of trade.

False evidence of use. Evidence of use that has been demonstrated to be false does not establish use in commerce. Look Cycle Int'l v. Kunshan Qiyue Outdoor Sports Goods Co., Can. No. 92079409, 2024 TTAB LEXIS 289, at *32-34 (2024). For example, when a petitioner or examiner provides evidence showing that an invoice submitted by the registrant includes a non-existent customer address and such evidence is unrebutted by the registrant, that invoice cannot be considered evidence of sales of the goods shown. See id.

Evidence of excusable nonuse for registrations with a sole registration basis under §44(e) or §66(a). A registrant in an expungement proceeding may respond by showing that any nonuse as to particular goods and/or services with a sole registration basis under §44(e) or §66(a) is due to special circumstances that excuse such nonuse, as set forth in 37 C.F.R. §2.161(a)(6)(ii). See 15 U.S.C. §1066a(f); 37 C.F.R. §2.93(b)(5)(ii). The registrant must provide verified statements and evidence to support the claim of excusable nonuse. 37 C.F.R. §2.93(b)(5)(ii).

Excusable nonuse may not be considered for any goods and/or services registered under §1 of the Trademark Act. See 37 C.F.R. §2.93(b)(5)(ii).

See TMEP §1604.11 for examples of special circumstances that may excuse nonuse.