Section 8 and Section 15 are post-registration maintenance procedures under the US Lanham Act. Section 8 requires the registrant to file periodic declarations of use proving the mark is still in use in commerce, failing which the registration is cancelled; Section 15 is the "declaration of incontestability" available after five consecutive years of use, strengthening the stability of the right. The two are usually filed together.
Section 8 Declaration of Use
Filing milestones:
- First filed between years 5 and 6 after the registration date;
- Thereafter filed with each renewal (every 10 years) — years 9–10, 19–20, and so on;
- Each window is followed by a six-month grace period subject to a surcharge; after the grace period the registration is cancelled and cannot be revived.
What to file:
- At least one current specimen of use per remaining class (product photos, packaging, real sales pages);
- An item-by-item declaration that the listed goods/services are still in use; items no longer used should be proactively deleted;
- Fees charged per class.
Examination has tightened in recent years: the USPTO's Post Registration Audit randomly selects registrations and requires evidence for more goods items. Filing false or overstated declarations of use can lead to deletion of goods or even cancellation of the entire registration.
Section 15 Declaration of Incontestability
- Conditions: five consecutive years of use in commerce after registration, with no pending adverse proceedings;
- Effect: the registration acquires "incontestable" status — others can no longer challenge its validity on grounds such as "descriptiveness" or "lack of distinctiveness" (though attacks based on genericide, abandonment, fraud and the like remain possible);
- How to file: there is no separate fee milestone; it is usually filed together with the Section 8 declaration in years 5–6 (commonly called the "Section 8 & 15").
Notes for Chinese Right Holders
- Those who obtained US registration via Section 44(e) (based on a foreign registration) without actually using the mark in the US must still file Section 8 in years 5–6 — without genuine use evidence the registration cannot survive;
- Build a trademark maintenance calendar and set the years 5–6 milestone as a top-priority reminder;
- Keep dated sales records, orders and ad screenshots routinely so evidence is at hand when needed;
- For goods no longer sold, proactively delete them when filing the declaration to avoid audit risk.
How these concepts apply in specific cases still involves detailed differences; you can consult a registered agent at MyTMBee for case-specific analysis.