Trademark Renewal: What Is a Declaration of Incontestability?


Making Your Registered Trademark Bulletproof 

Once you have successfully registered your trademark with the US Patent and Trademark Office (USPTO), that is not the end of the effort you must expend with regard to the trademark. 

Unlike copyright or patent protection, trademark protection is not extended merely to protect your creative work. Trademark protection exists to protect consumers from confusion as to the source of a product or service being marketed in interstate commerce. 

In other words, you have to be in business in order to keep your trademark registration. 

Maintaining Your Trademark Post-Registration

If you stop using your trademark “in commerce,” it will be abandoned and will be available for registration who is using it in commerce. 

Thus, between the 5th and 6th years post-registration, you must file a Declaration of Use with a specimen proving the ongoing commercial use of the mark. 

Once you have filed your 5-year Statement of Use, you have also the right to file a Declaration of Incontestability. 

What Is a Declaration of Incontestability? 

The Declaration of Incontestability is a further statement that can be filed after 5 years of continuous use in interstate commerce (and the filing of the Statement of Use attesting to that). 

Only trademarks registered on the Principal Register and not the Supplemental Register are eligible. 

The statement is a declaration that the mark has been in use for the required 5-year period of time continuously—and is still in use—and that there is no judicial decision against the owner’s right to keep the registration or any legal proceeding underway involving the trademark, either before the USPTO or in a court of law. 

What Are the Benefits of the Declaration of Incontestability? 

With the filing of the Declaration and the payment of the required fee ($200.00 as of this writing), the Declaration constitutes conclusive evidence of the validity of your trademark and your right to use the mark in interstate commerce. 

This means that, if you are sued for infringement, the Declaration provides a defense to allegations of infringement that will be difficult for the plaintiff to overcome. 

Detroit Michigan Trademark Attorney: The Bottom Line on the Declaration of Incontestability

The bottom line with regard to the Declaration of Incontestability and other post-registration maintenance issues is that it is crucial to retain a knowledgeable attorney to assist you with your application—and to keep assisting you thereafter.

A licensed attorney will provide you a measure of comfort in knowing that details such as these will be properly handled and will not upend your chances of a successful registration. 

Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting enterprises in every industry with trademark registration, trademark renewal, trademark monitoring, and Office Action refusal response matters.

We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration success.

Click the “Register Your Trademark” button below to schedule your initial consultation and to begin your brand protection journey.