Section 71 Declaration of Use: Deadlines, Specimens, and Filing

A Section 71 declaration of use is the maintenance filing the USPTO requires from owners of U.S. trademarks that came through the Madrid Protocol. The first one is due between the fifth and sixth anniversary of your U.S. registration, then again between years nine and ten, and every ten years after that. The electronic filing fee is $325 per class of goods or services, and missing the deadline means your U.S. registration is canceled automatically.¹

Who Files Section 71 Instead of Section 8

Section 71 applies only to U.S. registrations that reached the United States as an extension of protection under the Madrid Protocol. If you filed one international application through the World Intellectual Property Organization and designated the U.S. as a target country, that is you. Owners who applied directly to the USPTO file a Section 8 declaration instead.² The two filings look similar, but submitting the wrong form does not satisfy your maintenance obligation.

Both filings ask the same core question: is the mark actually being used in U.S. commerce, or is there a valid reason it isn’t? One point trips up international owners routinely. Using the mark only in a foreign country does not count as use in commerce for U.S. purposes.² The commercial activity has to touch the United States.

When the Declaration Is Due

Deadlines run from the date the USPTO issued your certificate of extension of protection, not the date of your international registration with WIPO.³ Owners who manage international portfolios and track everything from the WIPO date frequently calendar the wrong deadline.

The first Section 71 declaration is due in the one-year window between the fifth and sixth anniversaries of your U.S. registration date. Each following declaration is due in the one-year window before every tenth anniversary: between years nine and ten, then between nineteen and twenty, and so on.¹

Miss the regular window and a six-month grace period follows. A grace-period filing costs an extra $100 per class on top of the standard fee.⁴ Miss both, and the registration is canceled. No additional notice, no second chance.¹

What the Declaration Must Contain

Federal regulations set out what a complete Section 71 filing looks like.⁵

Your U.S. registration number, not your international registration number.
The current legal name and address of the trademark owner as it appears in USPTO records.
A signed, verified statement confirming that the mark is in use in U.S. commerce and listing the specific goods or services it is being used for. The signer must have firsthand knowledge of the use, typically the owner, a company officer, or an authorized attorney.
At least one specimen per class showing how the mark is actually used in commerce.
The filing fee for each class covered, plus any grace-period surcharge.

If you have stopped using the mark for some of the goods or services in the registration, you have two options: delete those items, or claim excusable nonuse. Staying silent about goods you no longer sell is not one of them.

Specimens That Will Actually Be Accepted

The specimen is where most Section 71 filings run into trouble. It has to show how the mark is being used in the real world, not how you plan to use it or how it might look on a product. For physical goods, photographs of labels, tags, or packaging with the mark visible work well. For online sales, a webpage screenshot showing the product offered for sale is acceptable, provided the screenshot includes the URL and the date you captured it.⁶

Service marks call for different evidence. Advertisements, brochures, or website screenshots showing the mark in connection with the services being offered will qualify.⁶ Each class needs its own specimen. One photo does not cover three different classes.

The USPTO now actively screens for fabricated, digitally altered, or mockup specimens, and examiners have become much more aggressive on this point. A specimen will be refused if it looks like a rendering rather than evidence of real commercial use. Warning signs include a mark that appears to float over the product, pixelation around the mark, features of the product that disappear near it, missing information that would normally appear on commercial packaging, and website screenshots with placeholder text or no visible URL. When an examiner suspects fabrication, the response is a refusal plus a detailed request for information about the specimen’s origin, your actual U.S. sales, and proof the mark is really in use.⁷

Claiming Excusable Nonuse

If you are not currently using the mark for some or all of your listed goods or services, excusable nonuse is available, but only if the nonuse results from circumstances beyond your control and you have not abandoned the mark.¹ The declaration must state the date the mark was last used, the approximate date you expect to resume use, and a factual explanation of the special circumstances.⁵

Classic examples include government-imposed trade embargoes, import restrictions, and natural disasters that destroyed production facilities. During the COVID-19 pandemic, the USPTO recognized that pandemic-related disruptions could qualify, provided the owner explained how the pandemic directly caused the nonuse and what steps were being taken to resume use.⁸ Simple financial hardship or a general business slowdown, without a specific external cause, typically will not qualify. Examiners look for circumstances that genuinely prevented use, not circumstances that made it inconvenient.

How to File and What It Costs

Section 71 declarations are submitted electronically through the USPTO’s Trademark Electronic Application System (TEAS). You open the Section 71 form, enter the registration number and owner information, select the goods and services still in use, upload your specimens, and pay. The electronic filing fee is $325 per class. Add $100 per class if you are filing during the grace period.⁴

A successful submission generates a timestamped receipt and updates the public record to show a pending declaration.

Delete Unused Goods Before You File

Timing matters when you drop goods or services from a registration. Deleting them before you file your Section 71 declaration, with no other changes, costs nothing. Deleting them after filing but before acceptance costs $250 per class affected.⁴ Review the registration carefully, remove anything you have stopped using, and then file for what remains.

What Happens After You File

A post-registration examining attorney reviews the declaration and specimens. The USPTO estimates one to two months for this review.⁹ A clean filing draws a notice of acceptance and the registration continues.

If the examiner finds a problem, such as a blurry specimen, a name discrepancy, or a specimen that does not match the listed goods, you receive an Office Action. For Madrid Protocol registrations, the response deadline is six months from the date the Office Action issues, and no extensions are available.¹⁰ If you filed during the regular one-year window and time still remains in that window or the grace period, the response deadline is the later of six months or the end of that filing period. If you filed during the grace period, the deadline is simply six months. Failing to respond in time cancels the registration, even if you already paid the filing fee.

The Post-Registration Audit Program

Acceptance is not necessarily the end. The USPTO may pick your registration for a post-registration audit that requires additional proof of use for a sample of your listed goods or services, beyond what you submitted originally.¹¹

Random audits pull registrations that include at least one class with four or more goods or services, or at least two classes with two or more each.
Directed audits target registrations with red flags in the file, such as specimens that look digitally altered or appear to come from a specimen farm.

If you are audited and cannot produce acceptable proof of use for particular goods or services, you must delete them and pay $250 per affected class. Digitally created or altered proof is explicitly unacceptable. Failing to respond to an audit Office Action, or failing to pay the required deletion fees, cancels the entire registration rather than just the disputed items.¹¹

Combining Section 71 With Section 15 Incontestability

The first Section 71 deadline falls in the five-to-six-year window, which is exactly when most marks first become eligible for incontestable status under Section 15. Filing both at the same time is a natural pairing. To qualify for incontestability, your mark must have been in continuous use in U.S. commerce for five consecutive years after registration, still be in use, and have no adverse final decision or pending proceeding against it.¹²

Incontestable status narrows the grounds a challenger can raise. Once your mark is incontestable, a challenger can no longer argue that the mark is merely descriptive or that you lack the right to register it. A mark that is the generic name for its goods or services cannot become incontestable no matter how long it has been used.¹² The Section 15 fee is $250 per class.¹³

If the Registration Is Canceled

Recovery options after cancellation are limited and depend on why the cancellation happened.

If you filed your Section 71 declaration on time but the registration was still canceled, for instance because an Office Action was issued and you never received it, you can file a petition to the Director of the USPTO. The fee is $400.⁴ The deadline is short: no later than two months after you actually learn of the cancellation, and no later than six months after the USPTO’s electronic records show the registration as canceled, whichever comes first.¹⁴ A petition works only when you actually met the filing deadline and a procedural issue caused the cancellation. If you missed the deadline outright, this route will not help.

One boundary worth naming. The Madrid Protocol allows a canceled international registration to be “transformed” into a direct U.S. application with the original priority date, but only when the International Bureau canceled the international registration at the request of the office of origin.¹⁵ Transformation is not available when a U.S. extension of protection is canceled because the owner failed to file a Section 71 declaration. In that case, the only way forward is filing a brand-new U.S. application, with a new filing date and no claim to the original priority. For marks that have accumulated goodwill and are close to incontestability, that is the reason to calendar Section 71 deadlines well in advance and treat them as fixed.

1
Office of the Law Revision Counsel. 15 USC 1141k – Duration, Affidavits and Fees
2
United States Patent and Trademark Office. Definitions for Maintaining a Trademark Registration
3
eCFR. Title 37, Part 7 – Rules of Practice in Filings Pursuant to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks
4
United States Patent and Trademark Office. USPTO Fee Schedule
5
eCFR. 37 CFR 7.37 – Requirements for Affidavit or Declaration of Use in Commerce or Excusable Nonuse
6
United States Patent and Trademark Office. Drawings and Specimens as Application Requirements
7
United States Patent and Trademark Office. Examination Guide 3-19 – Examination of Specimens for Use in Commerce
8
United States Patent and Trademark Office. Maintenance Filings, COVID-19, and Excusable Nonuse
9
United States Patent and Trademark Office. Keeping Your Registration Alive
10
United States Patent and Trademark Office. Response Time Period
11
United States Patent and Trademark Office. Post Registration Audit Program
12
Office of the Law Revision Counsel. 15 USC 1065 – Incontestability of Right to Use Mark Under Certain Conditions
13
United States Patent and Trademark Office. Summary of 2025 Trademark Fee Changes
14
eCFR. 37 CFR 2.146 – Petitions to the Director
15
Office of the Law Revision Counsel. 15 USC 1141j – Dependence of Extension of Protection to the United States on the Underlying International Registration