USPTO Post-Registration Audit Program

The USPTO's Post-Registration Audit Program was implemented to address a significant problem in the trademark system: registrations that claim use of the mark on goods or services where the mark is not actually being used. By auditing a percentage of maintenance filings, the USPTO works to ensure the accuracy and integrity of the trademark register — which benefits all trademark owners by maintaining the reliability of the registration system.

Why the Audit Program Exists

Studies conducted before the program's implementation found that a substantial percentage of registered trademarks listed goods or services on which the mark was no longer being used. These "deadwood" registrations cluttered the register and created obstacles for new applicants whose marks were refused based on registrations that were no longer in actual use. The audit program addresses this by requiring randomly selected registrants to provide proof of use for additional goods and services beyond the single specimen submitted with the maintenance filing.

How the Audit Works

When you file a Section 8 Declaration of Continued Use (due between years 5-6 after registration and as part of each 10-year renewal), you submit a specimen showing use of the mark in connection with at least one item in each class of goods or services covered by the registration. If your filing is selected for audit, the USPTO will issue an Office Action requiring you to submit additional specimens of use for two more items randomly selected from each class in your registration. You typically have six months to respond with acceptable specimens. If you cannot provide specimens for specific goods or services because the mark is no longer in use on those items, you must delete them from the registration.

What Constitutes an Acceptable Specimen

For goods (products), acceptable specimens include photographs of the mark on the product itself, on product packaging, on tags or labels attached to the product, or on displays associated with the product at the point of sale. Website pages showing the product for sale with the mark displayed in connection with the product can also work. For services, acceptable specimens include advertising or marketing materials that show the mark in connection with the services being offered, website screenshots showing the mark used in the rendering or advertising of the services, or photographs of the mark displayed at the place where the services are performed.

Preparing for a Potential Audit

The best defense against an audit is ongoing compliance. Maintain current specimens of use for every good and service listed in your registration. Regularly review your registration to ensure it accurately reflects your current use — if you have discontinued a product line or service, consider proactively deleting those items rather than waiting for an audit to force the issue. When filing maintenance documents, provide the strongest possible specimens and ensure they clearly show the mark as used in the ordinary course of trade.

Consequences of Failing an Audit

If you cannot provide acceptable specimens for the randomly selected goods or services, those items will be deleted from your registration. This narrows the scope of your protection. In extreme cases — where the mark is not in use on any of the goods or services listed — the registration can be cancelled entirely. There are also potential legal consequences for knowingly filing a false declaration of use, which is made under penalty of perjury. This underscores the importance of honest and accurate maintenance filings and the value of working with an attorney who can ensure your filings are defensible.