Section 8 Declaration of Continued Use: What Every Trademark Owner Must File Between Years 5 and 6

Receiving a trademark registration from the USPTO is a significant legal milestone. It represents the culmination of a clearance search, a carefully prepared application, and successful navigation of the examination process. But the work does not stop when the registration certificate arrives. Federal trademark law imposes ongoing maintenance obligations on every registered trademark owner, and the first major deadline falls between the fifth and sixth year after the date of registration.

During this window, every trademark owner with a registration on the USPTO’s Principal Register or Supplemental Register must file a Section 8 Declaration of Continued Use. This sworn statement confirms that the trademark is still in active use in commerce in connection with the goods or services listed in the registration. Miss this deadline and fail to file during the grace period, and the USPTO will cancel the registration entirely. There is no reinstatement, no revival, and no way to recover the original registration date. The owner would have to start the entire trademark application process again from scratch.

At Adams Law Office, attorney Sharon Adams personally manages trademark maintenance filings for her clients, tracking every registration date and filing window to ensure that no deadline is ever missed. This blog explains everything you need to know about the Section 8 Declaration: what it is, what must be included, what happens if you miss the deadline, and how to prepare for the potential complications that can arise.

What Is a Section 8 Declaration of Continued Use?

A Section 8 Declaration of Continued Use is a sworn statement submitted to the USPTO affirming that a registered trademark is still being used in commerce in connection with the goods or services identified in the registration. It is required by Section 8 of the Trademark Act, codified at 15 U.S.C. Section 1058.

The purpose behind the requirement is straightforward. The USPTO’s trademark register should reflect marks that are actively being used in commerce. If a business has stopped using a trademark, that registration should not continue to occupy space on the register and block other businesses from registering similar marks for the same type of goods or services. The Section 8 Declaration is the mechanism through which the USPTO periodically verifies that registrations remain active and that the marks they protect are still in genuine commercial use.

The filing is not optional. It is a legal requirement. Every trademark registration on either the Principal Register or the Supplemental Register is subject to the Section 8 deadline. Failing to meet it results in cancellation of the registration, and the USPTO has no authority to waive or extend that consequence.

When Is the Section 8 Declaration Due?

The first Section 8 Declaration is due between the fifth and sixth year following the date of registration. The one-year window opens on the fifth anniversary of the registration date and closes on the sixth anniversary. Filing must occur within this window.

After the first Section 8 Declaration, the filing is required again between the ninth and tenth years after registration, and then every ten years after that, always combined with a Section 9 Application for Renewal. The combined Section 8 and Section 9 filing at the ten-year mark, and every ten years thereafter, is what keeps the registration alive indefinitely as long as the mark remains in active commercial use.

The complete filing schedule for a trademark registration looks like this:

• Between the 5th and 6th year: Section 8 Declaration of Continued Use (required). At the same time, a Section 15 Declaration of Incontestability may optionally be filed if the mark has been in continuous use for five consecutive years since registration on the Principal Register.
• Between the 9th and 10th year: Combined Section 8 Declaration of Continued Use and Section 9 Application for Renewal (both required).
• Every 10 years after that: Combined Section 8 and Section 9 filing (both required, indefinitely).

Understanding this schedule is critical. Many trademark owners are aware of the initial registration but do not actively track the maintenance deadlines that follow. Missing the five-to-six-year Section 8 window is one of the most preventable and costly mistakes in trademark law.

What Must Be Included in a Section 8 Declaration?

Preparing a proper Section 8 Declaration requires more than simply signing a form. The filing must include several specific elements, and errors or omissions in any of them can result in a deficiency notice or a failed filing.

A Sworn Statement of Continued Use

The declaration must include a sworn statement affirming that the trademark is currently in use in commerce in connection with the goods or services identified in the registration. This statement is made under oath. Submitting a false declaration, for example, claiming continued use of a mark that has actually been discontinued, constitutes fraud on the USPTO and can expose the registration to cancellation.

The statement must be accurate as of the date it is signed. If the mark is being used for some of the goods or services listed in the registration but not all of them, the registration must be amended to delete the goods or services for which use has been discontinued. Filing a declaration of continued use that covers goods or services no longer in active commercial use is not permissible.

A Current Specimen of Use

The Section 8 Declaration must be accompanied by a specimen of use showing how the trademark is currently being used in commerce. The specimen must demonstrate actual, current use of the mark in connection with the specific goods or services covered by the registration. Historical specimens or images showing past use are not acceptable.

What constitutes an acceptable specimen depends on whether the trademark covers goods or services:

• For goods: Acceptable specimens typically include product labels, packaging showing the mark, tags attached to products, or screenshots of an e-commerce listing where the mark is prominently displayed in connection with the sale of the goods.
• For services: Acceptable specimens typically include website screenshots showing the mark being used in connection with the described services, advertising materials, brochures, or signage at a location where services are offered.

A specimen that does not clearly show the mark in connection with the registered goods or services will be refused by the USPTO examining attorney. A specimen refusal triggers a post-registration office action requiring a response within a specified period. Submitting a proper specimen from the outset avoids this complication. Sharon Adams reviews specimens carefully for every maintenance filing to confirm they meet the USPTO’s current standards before submission.

For detailed guidance on what qualifies as an acceptable specimen across different industries, read our blog on what qualifies as trademark use in commerce, with real specimen examples by industry.

The Required Filing Fee

A filing fee is required for each class of goods or services covered by the registration. If the registration covers multiple classes, a fee is required for each class. The USPTO’s fee schedule is updated periodically. Filing during the standard window incurs the standard per-class fee. Filing during the grace period incurs an additional surcharge per class on top of the standard fee.

Accuracy in the Identification of Goods and Services

The Section 8 Declaration provides the trademark owner with an opportunity to review and, if necessary, narrow the identification of goods and services in the registration. If the trademark is no longer being used in connection with some of the goods or services listed, those items must be deleted. The USPTO requires that the registration accurately reflect the goods and services for which the mark is currently in active commercial use.

Deleting goods or services that are no longer in use is not a penalty. It is a legal requirement and a reflection of the truth. Leaving discontinued goods or services in the registration creates the risk of a fraud challenge later, particularly if the declaration is submitted under oath claiming continued use across all listed goods or services.

What Is Excusable Nonuse?

In limited circumstances, a trademark owner who is not currently using the mark in commerce may still be able to maintain the registration by claiming excusable nonuse. Rather than filing a declaration of continued use, the owner files a declaration of excusable nonuse, explaining why the mark is temporarily not being used and affirming an intention to resume use.

Excusable nonuse requires that the cessation of use be due to special circumstances beyond the owner’s control, not simply a business decision to stop using the mark. Examples that may qualify include situations where the owner was forced to stop using the mark due to extraordinary circumstances such as a natural disaster, a government-imposed regulatory prohibition on the relevant goods or services, or another extraordinary event outside the owner’s control.

A deliberate business decision to pause or discontinue use of a trademark does not qualify as excusable nonuse. If a business has simply decided to shelve a brand temporarily, the registration is at risk. The USPTO evaluates claims of excusable nonuse carefully, and an inadequate explanation will result in cancellation of the registration. Before claiming excusable nonuse, it is essential to consult with a trademark attorney to evaluate whether the circumstances genuinely meet the legal standard.

The Six-Month Grace Period

If the Section 8 Declaration is not filed within the standard five-to-six-year window, the USPTO provides a six-month grace period during which the filing can still be submitted. However, filing during the grace period incurs an additional surcharge fee per class of goods or services.

The grace period is a safety net for situations where the standard deadline was inadvertently missed. It is not a planned filing strategy. Relying on the grace period introduces the risk of eventually missing even the extended window, which results in the cancellation of the registration. Trademark owners who consistently file within the standard window avoid additional costs and minimize legal risk.

If you are approaching or within the grace period for a Section 8 filing, contacting a trademark attorney immediately is the right course of action. The sooner the declaration is prepared and submitted, the more time is available to address any deficiencies in the specimen or other required elements before the grace period expires.

What Happens If the Section 8 Deadline Is Missed Entirely?

If the Section 8 Declaration is not filed within the standard five-to-six-year window and the six-month grace period also passes without a filing, the USPTO will cancel the trademark registration. This cancellation is not a suspension or a warning. It is a permanent termination of the registration.

Once cancelled for failure to file a Section 8 declaration, the registration cannot be reinstated or revived. The trademark owner loses all of the legal benefits associated with federal registration, including the nationwide presumption of ownership, the right to use the registered trademark symbol, the ability to record the registration with U.S. Customs and Border Protection, and the basis for opposing or seeking cancellation of confusingly similar marks.

To pursue federal trademark protection again after a cancellation, the owner must file an entirely new trademark application, go through the full examination process from the beginning, and wait for a new registration to issue. This means losing the original registration date, which could be significant if third parties have filed applications for similar marks in the years since the original registration. The priority date of the original registration, which could have been used to block later-filed conflicting applications, is gone.

The USPTO does send courtesy email reminders to the trademark owner’s address of record before major filing deadlines. But these reminders are informational only. If the email address on file is outdated, if the email is missed, or if the person who receives it does not understand its significance, the deadline still applies. It is the trademark owner’s responsibility to track and meet all maintenance deadlines, not the USPTO’s responsibility to ensure compliance.

USPTO Post-Registration Audits and the Section 8 Declaration

After a Section 8 Declaration is filed and accepted, the USPTO may randomly select the registration for a post-registration audit. The audit program was established to improve the accuracy of the trademark register by verifying that registrations reflect marks actually in use in commerce for all the goods and services listed.

During an audit, the USPTO will request additional specimens or evidence of use for specific goods or services identified in the registration, beyond the single specimen submitted with the Section 8 Declaration. The trademark owner must respond to the audit request with compliant evidence within the specified deadline. Failure to respond adequately can result in partial or complete cancellation of the registration for the goods or services for which use cannot be demonstrated.

Preparing for a potential audit begins before the Section 8 Declaration is filed. Keeping organised and detailed records of how the trademark is used across all goods and services in the registration makes it much easier to respond if an audit request arrives. Records should include dated photographs of packaging and labels, screenshots of website pages showing the mark in connection with each category of goods or services, and copies of advertising and promotional materials. Learn more about USPTO trademark renewal audits, what triggers them, and common pitfalls to avoid.

The Optional Section 15 Declaration: What It Adds at Year Five

At the same time as the Section 8 Declaration, trademark owners who have had their mark in continuous and lawful use in commerce for five consecutive years since registration on the Principal Register have the option to file a Section 15 Declaration of Incontestability. This filing is entirely optional, but it significantly strengthens the legal protections attached to the registration.

Filing a Section 15 Declaration alongside the Section 8 Declaration is the standard recommended approach. The USPTO processes both filings together, and combining them consolidates the administrative work and associated fees. The legal benefits of incontestable status are substantial: once a Section 15 Declaration is accepted, several of the most commonly asserted grounds for challenging a trademark registration, including descriptiveness, surname status, and lack of secondary meaning, are permanently foreclosed.

The Section 15 Declaration is covered in full detail in our dedicated blog: Section 15 Declaration of Incontestability: The Optional Filing That Can Transform Your Trademark Rights. Reading both blogs together gives you a complete picture of what happens at the five-year mark and why the combined filing strategy is the best approach for most trademark owners.

How the Section 8 Fits Into the Full Maintenance Lifecycle

The Section 8 Declaration at year five is the first maintenance filing in a schedule that continues for as long as the trademark remains in commercial use. Understanding how it connects to the broader maintenance lifecycle helps trademark owners plan ahead and avoid missed deadlines.

At the ten-year mark, the Section 8 Declaration must be filed again, this time combined with a Section 9 Application for Renewal. The Section 9 renewal formally extends the registration for an additional ten-year term. Without it, the registration expires at the end of the current term even if the Section 8 Declaration is filed. After the ten-year mark, this combined filing is required every ten years indefinitely.

For trademark owners who established incontestable status by filing a Section 15 Declaration at year five, incontestable status continues as long as the registration remains active and the mark continues to be used lawfully in commerce. There is no need to re-file the Section 15 at year ten or at any subsequent renewal. Incontestable status, once granted, endures for the life of the registration, provided all mandatory maintenance filings are made on time.

For a full guide to what happens at the ten-year renewal mark, including what the combined Section 8 and Section 9 filing requires, read our blog on trademark renewal at the 10-year mark: a complete guide to Section 9 and what comes next.

Common Mistakes Trademark Owners Make With Section 8 Filings

Many of the problems that arise with Section 8 declarations are preventable with proper preparation and legal oversight. The following are among the most common mistakes:

• Submitting a specimen that does not show current use: A specimen must show the mark in use in commerce at or near the time of filing. Submitting an old specimen from the original registration or an image that does not clearly connect the mark to the registered goods or services will result in a deficiency.
• Failing to delete discontinued goods or services: Claiming continued use of a mark in connection with goods or services no longer offered is a false statement under oath. It can expose the registration to cancellation for fraud.
• Filing under an outdated owner name: If the business has changed its legal name or been acquired since the trademark was registered, the registration must reflect the correct current owner. Filing a Section 8 Declaration under an incorrect owner name can invalidate the filing.
• Missing the deadline entirely: The USPTO sends courtesy reminders, but the obligation belongs to the trademark owner. An outdated contact email address, a missed notification, or a lack of active tracking can result in cancellation.
• Skipping the Section 15 Declaration: Many trademark owners file only the Section 8 Declaration and overlook the optional Section 15 filing. While Section 15 is not required, missing it means losing the opportunity to establish incontestable status during that window.

Why Working With a Trademark Attorney Matters for Section 8 Filings

Filing a Section 8 Declaration may seem straightforward, but the details matter. The specimen must be properly selected and reviewed for compliance. The list of goods and services must be carefully evaluated. The declaration must be signed by an authorised individual. And if a post-registration audit follows the filing, the trademark owner must respond promptly with additional evidence.

Online trademark platforms and automated filing services can help generate forms, but they cannot evaluate the adequacy of a specimen, identify goods or services that need to be deleted, or respond to a post-registration audit with strategic legal guidance. Errors at this stage can result in partial or complete cancellation of a registration that may have taken years and significant resources to obtain.

Sharon Adams personally handles all Section 8 filings for her clients at Adams Law Office. She reviews the current use of each mark, evaluates specimens, updates the identification of goods and services as needed, and advises on audit readiness. You can learn more about the full scope of trademark maintenance services available at Adams Law Office on our trademark services page. If your trademark registration is approaching the five-year mark, schedule a free 15-minute consultation with Sharon today.

Frequently Asked Questions About the Section 8 Declaration

What is a Section 8 Declaration of Continued Use?

A Section 8 Declaration of Continued Use is a sworn statement filed with the USPTO affirming that a registered trademark is still actively being used in commerce in connection with the goods or services listed in the registration. It is required by 15 U.S.C. Section 1058 and must be filed between the fifth and sixth year after registration to keep the registration alive.

Is the Section 8 Declaration required for all trademark registrations?

Yes. Every trademark registration on both the Principal Register and the Supplemental Register is subject to the Section 8 requirement. There are no exceptions based on the type of mark, the goods or services covered, or the owner’s business size. Missing the deadline results in the cancellation of the registration.

What happens if I miss the Section 8 filing deadline?

If the Section 8 Declaration is not filed within the five-to-six-year window, there is a six-month grace period during which the filing can still be submitted with an additional surcharge fee. If the filing is not made within the grace period, the USPTO will cancel the registration. A cancelled registration cannot be reinstated or revived. A new trademark application must be filed to pursue federal protection again.

What specimen of use is acceptable for a Section 8 Declaration?

The specimen must show the trademark in current, actual commercial use in connection with the specific goods or services identified in the registration. For goods, this typically means product labels, packaging, or e-commerce screenshots. For services, this typically means website screenshots, advertising materials, or other materials showing the mark being used in connection with the offered services. Historical specimens are not acceptable.

What if I am no longer using my trademark for some of the goods or services in my registration?

Goods or services for which the trademark is no longer being used in commerce must be deleted from the registration when the Section 8 Declaration is filed. The declaration must accurately reflect current use. Claiming continued use for discontinued goods or services is a false statement under oath and can expose the registration to cancellation for fraud.

Can I file a Section 8 Declaration if I am temporarily not using my trademark?

In limited circumstances, you may file a declaration of excusable nonuse if the temporary cessation of use is due to special circumstances beyond your control, not a deliberate business decision. However, excusable nonuse is a narrow exception that the USPTO evaluates carefully. Before claiming excusable nonuse, consult with a trademark attorney to determine whether your circumstances meet the legal standard.

Is there a grace period for the Section 8 filing?

Yes. There is a six-month grace period after the standard five-to-six-year filing window during which the Section 8 Declaration can still be submitted with an additional surcharge fee per class. Filing during the grace period preserves the registration. Filing after the grace period results in cancellation.

How much does it cost to file a Section 8 Declaration?

The USPTO charges a per-class filing fee for the Section 8 Declaration. If the registration covers multiple classes of goods or services, a fee applies for each class. An additional surcharge per class applies if the filing is made during the grace period rather than the standard window. Sharon Adams can provide current fee information and handle the filing on your behalf.

What is a post-registration audit, and could my Section 8 filing trigger one?

The USPTO randomly selects registrations for post-registration audits after a Section 8 declaration is accepted. During an audit, the USPTO may request additional specimens or evidence of use for specific goods or services listed in the registration. Keeping organised records of how the mark is used across all goods and services in the registration is the best way to prepare. Learn more about USPTO trademark renewal audits and what triggers them.

Should I also file a Section 15 Declaration at the same time as my Section 8?

If your trademark has been in continuous and lawful use in commerce for five consecutive years since registration on the Principal Register, filing the optional Section 15 Declaration of Incontestability alongside the Section 8 Declaration is strongly recommended. It significantly strengthens your trademark’s legal protections by permanently foreclosing several categories of challenges. Read our dedicated blog on the Section 15 Declaration of Incontestability for the full explanation.

When is the Section 8 Declaration due after the initial five-to-six-year filing?

After the initial Section 8 Declaration, the next filing is due between the ninth and tenth years after registration, combined with a Section 9 Application for Renewal. After that, the combined Section 8 and Section 9 filing is due every ten years. For a full explanation of the ten-year renewal process, read our blog on trademark renewal at the 10-year mark.

Does the USPTO notify me when my Section 8 Declaration is due?

The USPTO sends courtesy email reminders to the address of record before major filing deadlines. However, these reminders are informational only and do not replace the trademark owner’s responsibility to track and meet all maintenance deadlines. If your contact information on file with the USPTO is outdated, reminders may not reach you. Working with a trademark attorney who tracks your filing deadlines is the most reliable way to ensure nothing is missed.

What if the ownership of my trademark has changed since registration?

If the trademark has been transferred or assigned or if the owner’s legal name has changed since registration, the correct current owner must be reflected in the USPTO records before the Section 8 Declaration is filed. An assignment should be recorded with the USPTO to update the ownership record. Filing a declaration under an incorrect or outdated owner name can create legal complications. Sharon Adams reviews ownership records as part of every maintenance filing.

Can a trademark registration on the Supplemental Register also be cancelled for missing the Section 8 deadline?

Yes. Both Principal Register and Supplemental Register trademark registrations are subject to Section 8 maintenance requirements. Missing the deadline results in cancellation regardless of which register the mark is on. Note, however, that only Principal Register marks are eligible to file the optional Section 15 Declaration of Incontestability.

How does Adams Law Office handle Section 8 filings for clients?

Sharon Adams personally manages all trademark maintenance filings for her clients at Adams Law Office. She tracks registration dates, monitors filing windows, reviews current use of the mark, evaluates specimens for compliance, updates the goods and services identification as needed, and ensures every Section 8 Declaration is filed correctly and on time. Schedule a free 15-minute consultation to review your registration status.

What is the difference between the Section 8 filing at year five and the combined Section 8 and Section 9 filing at year ten?

The Section 8 filing at year five confirms continued use of the mark and keeps the registration active but does not formally renew it for a new term. At the ten-year mark, a Section 9 Application for Renewal must be filed alongside the Section 8 Declaration to formally extend the registration for another ten years. Without the Section 9 Renewal, the registration expires at the end of the ten-year term even if the Section 8 Declaration is filed.