Changes in Requirements for Affidavits or Declarations of Use, Continued Use, or Excusable Nonuse in Trademark Cases, 40589-40594 [2016-14791]

Agencies

• DEPARTMENT OF COMMERCE
• United States Patent and Trademark Office

[Federal Register Volume 81, Number 120 (Wednesday, June 22, 2016)]
[Proposed Rules]
[Pages 40589-40594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14791]


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DEPARTMENT OF COMMERCE

United States Patent and Trademark Office

37 CFR Parts 2 and 7

[Docket No. PTO-T-2016-0002]
RIN 0651-AD07


Changes in Requirements for Affidavits or Declarations of Use, 
Continued Use, or Excusable Nonuse in Trademark Cases

AGENCY: United States Patent and Trademark Office, Commerce.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In order to assess and promote the accuracy and integrity of 
the trademark register, the United States Patent and Trademark Office 
(USPTO or Office) proposes to amend its rules concerning the 
examination of affidavits or declarations of continued use or excusable 
nonuse filed pursuant to section 8 of the Trademark Act, or affidavits 
or declarations of use in commerce or excusable nonuse filed pursuant 
to section 71 of the Trademark Act. Specifically, the USPTO proposes to 
require the submission of information, exhibits, affidavits or 
declarations, and such additional specimens of use as may be reasonably 
necessary for the USPTO to ensure that the register accurately reflects 
marks that are in use in the United States for all the goods/services 
identified in the registrations, unless excusable nonuse is claimed in 
whole or in part. A register that does not accurately reflect marks in 
use in the United States for the goods/services identified in 
registrations imposes costs and burdens on the public. The proposed 
rules will allow the USPTO to require additional proof of use to verify 
the accuracy of claims that a trademark is in use in connection with 
particular goods/services identified in the registration.

DATES: Comments must be received by August 22, 2016 to ensure 
consideration.

ADDRESSES: The USPTO prefers that comments be submitted via electronic 
mail message to TMFRNotices@uspto.gov. Written comments may also be 
submitted by mail to the Commissioner for Trademarks, P.O. Box 1451, 
Alexandria, VA 22313-1451, attention Jennifer Chicoski; by hand 
delivery to the Trademark Assistance Center, Concourse Level, James 
Madison Building-East Wing, 600 Dulany Street, Alexandria, VA, 22314, 
attention Jennifer Chicoski; or by electronic mail message via the 
Federal eRulemaking Portal at https://www.regulations.gov. See the 
Federal eRulemaking Portal Web site for additional instructions on 
providing comments via the Federal eRulemaking Portal. All comments 
submitted directly to the USPTO or provided on the Federal eRulemaking 
Portal should include the docket number (PTO-T-2016-0002).
    The comments will be available for public inspection on the USPTO's 
Web site at https://www.uspto.gov, on the Federal eRulemaking Portal, 
and at the Office of the Commissioner for Trademarks, Madison East, 
Tenth Floor, 600 Dulany Street, Alexandria, VA 22314. Because comments 
will be made available for public inspection, information that is not 
desired to be made public, such as an address or phone number, should 
not be included.

FOR FURTHER INFORMATION CONTACT: Jennifer Chicoski, Office of the 
Deputy Commissioner for Trademark

[[Page 40590]]

Examination Policy, by email at TMPolicy@uspto.gov, or by telephone at 
(571) 272-8943.

SUPPLEMENTARY INFORMATION: 
    Purpose: The USPTO proposes to revise the rules in parts 2 and 7 of 
title 37 of the Code of Federal Regulations to allow the USPTO, during 
the examination of affidavits or declarations of continued use or 
excusable nonuse filed pursuant to section 8 of the Trademark Act, 15 
U.S.C. 1058, or affidavits or declarations of use in commerce or 
excusable nonuse filed pursuant to section 71 of the Trademark Act, 15 
U.S.C. 1141k (section 8 or section 71 affidavits), to require the 
submission of such information, exhibits, affidavits or declarations, 
and such additional specimens of use as may be reasonably necessary for 
the USPTO to verify the accuracy of claims that a trademark is in use 
in connection with the goods/services listed in the registration.
    This will benefit the public by facilitating the USPTO's ability to 
assess and promote the integrity of the trademark register by 
encouraging accuracy in the identification of goods/services for which 
use or continued use is claimed. The accuracy of the trademark register 
as a reflection of marks that are actually in use in the United States 
for the goods/services identified in the registrations listed therein 
serves an important purpose for the public. The public relies on the 
register to determine whether a chosen mark is available for use or 
registration. Where a party's search of the register discloses a 
potentially confusingly similar mark, that party may incur a variety of 
resulting costs and burdens, such as those associated with 
investigating the actual use of the disclosed mark to assess any 
conflict, proceedings to cancel the registration or oppose the 
application of the disclosed mark, civil litigation to resolve a 
dispute over the mark, or changing plans to avoid use of the party's 
chosen mark. If a registered mark is not actually in use in the United 
States, or is not in use in connection with all the goods/services 
identified in the registration, these costs and burdens may be incurred 
unnecessarily. An accurate and reliable trademark register helps avoid 
such needless costs and burdens.
    The proposed rules also facilitate the cancellation of 
registrations for marks that were never in use or are no longer in use, 
and for which acceptable claims of excusable nonuse were not submitted, 
in connection with the identified goods/services. The statutory 
requirements in sections 8 and 71 exist to enable the USPTO to clear 
the register of deadwood by cancelling, in whole or in part, 
registrations for marks that are not in use for all or some of the 
goods/services identified in the registration. The proposed rules 
further this statutory purpose.

Background

    Post Registration Proof-of-Use Pilot Program: A final rule was 
published in the Federal Register on May 22, 2012 (77 FR 30197), in 
which the USPTO announced a two-year pilot program to assess and 
promote the accuracy and integrity of the trademark register. The USPTO 
randomly selected 500 registrations for which section 8 and section 71 
affidavits were filed to participate in the pilot program to determine 
the actual use of the marks in connection with the goods/services 
identified in the registrations. The selected registrations comprised a 
sample of the four statutory registration bases, that is, Trademark Act 
sections 1(a), 44(e), 66(a), and 1(a) and 44(e) combined (dual basis). 
15 U.S.C. 1051(a), 1126(e), 1141(e). In each case, the trademark owner 
had submitted, as part of its section 8 or section 71 affidavit, a 
sworn statement that all the goods/services identified in the 
registration or otherwise set forth in the filing were presently in use 
in commerce. None of the selected registrations included claims of 
excusable nonuse.
    As part of the pilot program, the selected trademark owners were 
required to submit proof of use of their marks for two additional 
goods/services per class, in addition to the one specimen per class 
submitted with their affidavits, and to verify use of the additional 
goods/services during the statutory filing period. The USPTO randomly 
selected the two specific goods/services for which additional proof of 
use was required. If the owner's response to the inquiry did not fully 
address the requirements, or included a request to delete the 
identified goods/services, the USPTO required further proof of use to 
verify the accuracy of the goods/services identified in the 
registration. If the registration owner responded by providing 
acceptable proof of use and satisfying any other outstanding 
requirements as to the underlying maintenance filing, a notice of 
acceptance was issued. The pilot concluded with all 500 registrations 
receiving either a notice of acceptance of the affidavit or declaration 
or a notice of cancellation of the registration.
    Summary of Results: In 51% of the 500 registrations selected for 
the pilot, the trademark owners failed to supply additional verified 
proof of use on specific goods/services for which use was initially 
claimed. Of this 51%, in 35% of the registrations, the owner requested 
that some goods/services that were initially claimed to be in use be 
deleted, and the remaining 16% of the registrations were cancelled 
because the trademark owners failed to respond to the requirements for 
additional proof or to any other issues raised during examination of 
the section 8 or section 71 affidavit. Ultimately, the section 8 and 
section 71 affidavits were accepted for 84.4%, or 422 registrations, 
which included acceptances issued after goods/services queried under 
the pilot were deleted.
    Identifying Procedures to Assess and Promote the Accuracy and 
Integrity of the Trademark Register: The status reports issued 
throughout the course of the pilot all supported the need for ongoing 
efforts aimed at ensuring the accuracy and integrity of the trademark 
register as to the actual use of marks in connection with the goods/
services identified in the registrations. To that end, the USPTO held a 
roundtable discussion on December 12, 2014 for various stakeholder 
groups, requested written comments from interested parties to further 
explore the topic, and discussed the topic at several other outreach 
sessions. During the roundtable discussion and outreach sessions, one 
suggestion that received widespread support was to establish a 
permanent program similar to the proof-of-use pilot.
    The USPTO proposes herein a permanent program where it would 
conduct random audits of up to 10% of the combined total of section 8 
and section 71 affidavits filed each year in which the mark is 
registered for more than one good or service per class. As part of the 
review of the selected affidavits, in addition to the one specimen of 
use per class currently required, owners would be required to provide 
additional proof of use in the nature of information, exhibits, 
affidavits or declarations, and specimens showing use for some of the 
additional goods/services listed beyond that shown in the one specimen 
per class.
    The USPTO anticipates issuing an Office action that would specify 
the goods/services that will require the submission of the additional 
information, exhibits, affidavits or declarations, and specimens. The 
trademark owners would be afforded the usual response period to the 
Office action, that is, a response would be due within six months of 
the issuance date of the Office action, or before the end of

[[Page 40591]]

the statutory filing period for the section 8 or section 71 affidavit, 
whichever is later. 37 CFR 2.163(b), 7.39(a). If the trademark owner 
responds, but is ultimately unable to provide the requested 
information, exhibits, affidavits or declarations, and specimens, the 
USPTO would deem the section 8 or section 71 affidavit unacceptable as 
to the goods/services to which the requirement pertained and will 
cancel such goods/services from the registration. If no response to the 
Office action is filed within six months of the issuance date of the 
Office action, or before the end of the statutory filing period for the 
section 8 or section 71 affidavit, whichever is later, the USPTO would 
cancel the entire registration, unless time remains in the grace period 
under section 8(a)(3) or section 71(a)(3) of the Act. 15 U.S.C. 
1058(a)(3), 1141k(a)(3); 37 CFR 2.163(c), 7.39(b). If time remains in 
the grace period, the owner may file a complete new section 8 or 
section 71 affidavit, with a new fee and grace-period surcharge. 37 CFR 
2.161(d)(2), 7.36(b)(3).
    The purpose of the program is to substantiate claims of use and 
discourage inaccuracies within these maintenance filings and continued 
registration of marks that are no longer in use for the listed goods/
services. In Fiscal Year 2015, approximately 147,496 section 8 and 
5,000 section 71 affidavits were filed.

Discussion of Proposed Regulatory Changes

    The USPTO proposes to amend 37 CFR 2.161 and 7.37 to provide that 
the USPTO may require such information, exhibits, affidavits or 
declarations, and such additional specimens of use as may be reasonably 
necessary for the USPTO to assess and promote the accuracy and 
integrity of the register. The current rules mandate the submission of 
only one specimen per class in connection with a section 8 or section 
71 affidavit unless additional information, exhibits, affidavits or 
declarations, or specimens are necessary for proper examination of the 
affidavit itself. 37 CFR 2.161(g) and (h), 7.37(g) and (h). This 
revision will allow the USPTO to require additional proof of use of a 
mark not only to facilitate proper examination of a section 8 or 
section 71 affidavit, but also to verify the accuracy of claims that a 
trademark is in use on or in connection with the goods/services 
identified in the registration.
    The USPTO proposes to revise Sec.  2.161(h) to add the phrase ``or 
for the Office to assess and promote the accuracy and integrity of the 
register'' at the end of the paragraph.
    The USPTO proposes to revise Sec.  7.37(h) to add the phrase ``or 
for the Office to assess and promote the accuracy and integrity of the 
register'' at the end of the paragraph.

Rulemaking Requirements

    Administrative Procedure Act: The changes in this rulemaking 
involve rules of agency practice and procedure, and/or interpretive 
rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) 
(interpretive rules ``advise the public of the agency's construction of 
the statutes and rules which it administers'') (citation and internal 
quotation marks omitted); Nat'l Org. of Veterans' Advocates v. Sec'y of 
Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (rule that 
clarifies interpretation of a statute is interpretive); Bachow Commc'ns 
Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (rules governing an 
application process are procedural under the Administrative Procedure 
Act); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 
2001) (rules for handling appeals were procedural where they did not 
change the substantive standard for reviewing claims).
    Accordingly, prior notice and opportunity for public comment for 
the changes in this rulemaking are not required pursuant to 5 U.S.C. 
553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (notice-
and-comment procedures are required neither when an agency ``issue[s] 
an initial interpretive rule'' nor ``when it amends or repeals that 
interpretive rule''); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-
37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 
2(b)(2)(B), does not require notice and comment rulemaking for 
``interpretative rules, general statements of policy, or rules of 
agency organization, procedure, or practice,'' quoting 5 U.S.C. 
553(b)(A)). However, the USPTO has chosen to seek public comment before 
implementing the rule.

Initial Regulatory Flexibility Analysis

    The USPTO publishes this Initial Regulatory Flexibility Analysis 
(IRFA) as required by the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601 et seq.) to examine the impact of the Office's proposed changes to 
the requirements for section 8 and section 71 affidavits on small 
entities and to seek the public's views. Under the RFA, whenever an 
agency is required by 5 U.S.C. 553 (or any other law) to publish a 
notice of proposed rulemaking (NPRM), the agency must prepare and make 
available for public comment an IRFA, unless the agency certifies under 
5 U.S.C. 605(b) that the proposed rule, if implemented, will not have a 
significant economic impact on a substantial number of small entities. 
5 U.S.C. 603, 605.
    Items 1-5 below discuss the five items specified in 5 U.S.C. 
603(b)(1) through (5) to be addressed in an IRFA. Item 6 below 
discusses alternatives to this proposal that the Office considered.
1. Description of the Reasons That Action by the Office Is Being 
Considered
    The USPTO proposes to require any information, exhibits, affidavits 
or declarations, and such additional specimens deemed reasonably 
necessary to assess and promote the accuracy and integrity of the 
trademark register in connection with the examination of a section 8 or 
section 71 affidavit. Post registration affidavits under section 8 or 
section 71, and their accompanying specimens of use, demonstrate a 
registration owner's continued use of its mark in commerce for the 
goods/services identified in the registration. The proposed revisions 
will facilitate the USPTO's ability to ensure that the register 
accurately reflects marks that are in use in commerce that may be 
regulated by the U.S. Congress for the goods/services identified 
therein.
2. Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rules
    The objective of the proposed rulemaking is to allow the USPTO to 
assess and promote the integrity of the trademark register. The 
Trademark Act gives the Director of the USPTO discretion regarding the 
number of specimens to require. 15 U.S.C. 1051(a)(1), (d)(1), 
1058(b)(1)(C), 1141k(b)(1)(C). The current rules mandate the submission 
of only one specimen per class in connection with a section 8 or 
section 71 affidavit unless additional information, exhibits, 
affidavits or declarations, or specimens are necessary for proper 
examination of the affidavit itself. 37 CFR 2.161(g), (h), 7.37(g), 
(h). However, these rules do not currently allow the Office to require 
additional specimens or other information or exhibits in order to 
verify that the mark is in use on additional goods/services listed in 
the registration. The proposed rules will allow the USPTO to properly 
examine the nature and veracity of allegations of use made in 
connection with the submission of a section 8 or section 71 affidavit, 
and thereby assess and promote the integrity of the register by 
verifying that the register accurately reflects the goods/

[[Page 40592]]

services for which use is claimed for a given registered mark.
3. Description and Estimate of the Number of Affected Small Entities
    The USPTO does not collect or maintain statistics in trademark 
cases on small- versus large-entity registrants, and this information 
would be required in order to estimate the number of small entities 
that would be affected by the proposed rules. However, the USPTO 
believes that the overall impact of the proposed rules on registrants 
will be relatively minimal.
    After registration, trademark owners must make periodic filings 
with the USPTO to maintain their registrations. A section 8 or section 
71 affidavit is a sworn statement in which the registrant specifies the 
goods/services/collective membership organization for which the mark is 
in use in commerce and/or the goods/services/collective membership 
organization for which excusable nonuse is claimed. 15 U.S.C. 1058, 
1141k. The purpose of the section 8 and section 71 affidavits is to 
facilitate the cancellation, by the Director of the USPTO, of 
registrations of marks no longer in use in connection with the goods/
services/collective membership organization identified in the 
registrations. The proposed rules would apply to any entity filing a 
section 8 or section 71 affidavit, but only a subset of trademark 
owners would be required to provide more than one specimen or 
additional information, exhibits, or specimens in connection with the 
audit. The USPTO is unable to estimate the subset of trademark owners 
who are small entities that are impacted by the proposed rules. In 
Fiscal Year 2015, approximately 147,496 section 8 and 5,000 section 71 
affidavits were filed.
4. Description of the Reporting, Recordkeeping, and Other Compliance 
Requirements of the Proposed Rule, Including an Estimate of the Classes 
of Small Entities Which Will Be Subject to the Requirement and the Type 
of Professional Skills Necessary for Preparation of the Report or 
Record
    The proposed rules impose no new recordkeeping requirements on 
trademark registrants.
    Regarding compliance with the proposed rules, as an initial matter, 
the USPTO does not anticipate the proposed rules to have a 
disproportionate impact upon any particular class of small or large 
entities. Any entity that has a registered trademark in which the mark 
is registered for more than one good or service per class could 
potentially be impacted by the proposed rules.
    The USPTO anticipates that it may conduct random audits of up to 
10% of the combined total of section 8 and section 71 affidavits filed 
each year in which the mark is registered for more than one good or 
service per class. In those post registration cases where an initial 
requirement for additional information, exhibits, affidavits or 
declarations, and specimens is issued in an Office action, and assuming 
that an attorney is representing the registrant, the USPTO estimates it 
will take approximately one hour to comply. To that end, the USPTO 
provides an online electronic form for responding to Office actions.
    Similar to the submission necessary for the statutorily required 
section 8 and section 71 affidavits, a response to an Office action 
issued in connection with these affidavits will generally necessitate 
gathering and submitting one or more specimens of use and an 
accompanying declaration. Therefore, under the proposed rules, the type 
of fact gathering and review of the nature and extent of the use of the 
mark that underlies a section 8 or section 71 affidavit will already 
have occurred. Compliance with the proposed requirement will only 
necessitate gathering and submitting the additional evidence to 
demonstrate and support what has previously been assessed.
    Assuming the mark is in use, as claimed, the compliance time 
involves the length of time to secure additional information, exhibits, 
affidavits or declarations, or specimens and accompanying declaration, 
plus any time it takes an attorney to communicate with the client in 
order to obtain what is required and make the necessary filing with the 
USPTO. In practice, approximately one-third of section 8 and section 71 
affidavits are filed pro se. These trademark owners are likely to have 
a shorter compliance time than the USPTO has estimated, which assumes 
the involvement of an attorney. The proposed rules do not mandate the 
use of legal counsel.
5. Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Rule on Small Entities
    The USPTO has considered whether and how it is appropriate to 
reduce any burden on small businesses through increased flexibility. 
The following alternatives were considered, but rejected, by the USPTO.
    USPTO considered an alternative where it would not require 
additional information, exhibits, affidavits or declarations, and 
specimens in connection with section 8 or section 71 affidavits, or 
where it would exempt small entities from such requirements. This 
alternative would have a lesser economic impact on small entities, but 
was rejected because it would not accomplish the stated objective of 
assessing and promoting the integrity of the trademark register by 
verifying that marks are in use for the goods/services identified in 
the registration. As noted above, the results of the post registration 
proof-of-use pilot supported the need for ongoing efforts aimed at 
assessing and promoting the accuracy and integrity of the register as 
to the actual use of marks in connection with the goods/services 
identified in the registrations. Subsequent outreach efforts revealed 
widespread support for continuing the pilot program on a permanent 
basis. Exempting small entities would prevent consideration of all 
section 8 and section 71 affidavits and not achieve the stated 
objective of assessing and promoting the accuracy and integrity of the 
register.
    The stated objective of the proposed rules also facilitates the 
cancellation of registrations for marks that are no longer in use or 
that were never used, and for which acceptable claims of excusable 
nonuse were not submitted, in connection with the identified goods/
services. The statutory requirements in sections 8 and 71 exist to 
enable the USPTO to clear the register of deadwood by cancelling, in 
whole or in part, registrations for marks that are not in use for all 
or some of the goods/services identified in the registration. The 
proposed rules further this statutory purpose. Exempting small entities 
from possible scrutiny regarding use allegations would fail to address 
marks not used by them, thereby not achieving the objective.
    USPTO considered a second alternative that would extend the time 
period for compliance by small entities, however this was rejected 
because there appears to be no reason that meeting the requirements of 
the proposed rules would be more time consuming for small entities. The 
USPTO's standard six-month time period for responding to Office actions 
allows sufficient time regardless of small-entity status.
    Finally, USPTO considered an alternative that would streamline or 
simplify the compliance mechanism for small entities, but it was deemed 
unnecessary given the ease of responding electronically to Office 
actions using the Trademark Electronic Application System Response to 
Post Registration Office Action form. Thus,

[[Page 40593]]

under the proposed rule, compliance will be as streamlined and 
simplified as possible for all affected entities. Moreover, where the 
objective is to verify the accuracy of a claim of use in a section 8 or 
section 71 affidavit, the proposed requirements for additional 
information, exhibits, affidavits or declarations, and specimens 
demonstrating the manner of use of the mark in connection with the 
specified goods/services are the least burdensome and most efficient 
means of achieving the objective of assessing and promoting and 
assessing the accuracy and integrity of the register by verifying 
allegations of use.
    Use of performance rather than design standards is not applicable 
to the proposed rulemaking because the USPTO is not issuing any sort of 
standard. The proposed rules will require registrants to furnish 
evidence of use, rather than comply with a performance or design 
standard.
6. Identification, to the Extent Practicable, of All Relevant Federal 
Rules Which May Duplicate, Overlap or Conflict With the Proposed Rule
    The proposed rules do not duplicate, overlap or conflict with any 
other Federal rules.
    Executive Order 12866 (Regulatory Planning and Review): This 
rulemaking has been determined to be not significant for purposes of 
Executive Order 12866 (Sept. 30, 1993).
    Executive Order 13563 (Improving Regulation and Regulatory Review): 
The USPTO has complied with Executive Order 13563 (Jan. 18, 2011). 
Specifically, the USPTO has, to the extent feasible and applicable: (1) 
Made a reasoned determination that the benefits justify the costs of 
the rule changes; (2) tailored the rules to impose the least burden on 
society consistent with obtaining the regulatory objectives; (3) 
selected a regulatory approach that maximizes net benefits; (4) 
specified performance objectives; (5) identified and assessed available 
alternatives; (6) provided the public with a meaningful opportunity to 
participate in the regulatory process, including soliciting the views 
of those likely affected prior to issuing a notice of proposed 
rulemaking, and provided on-line access to the rulemaking docket; (7) 
attempted to promote coordination, simplification, and harmonization 
across government agencies and identified goals designed to promote 
innovation; (8) considered approaches that reduce burdens and maintain 
flexibility and freedom of choice for the public; and (9) ensured the 
objectivity of scientific and technological information and processes, 
to the extent applicable.
    Executive Order 13132 (Federalism): This rulemaking does not 
contain policies with federalism implications sufficient to warrant 
preparation of a Federalism Assessment under Executive Order 13132 
(Aug. 4, 1999).
    Congressional Review Act: Under the Congressional Review Act 
provisions of the Small Business Regulatory Enforcement Fairness Act of 
1996 (5 U.S.C. 801 et seq.), prior to issuing any final rule, the USPTO 
will submit a report containing the final rule and other required 
information to the United States Senate, the United States House of 
Representatives, and the Comptroller General of the Government 
Accountability Office. The changes in this notice are not expected to 
result in an annual effect on the economy of 100 million dollars or 
more, a major increase in costs or prices, or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets. 
Therefore, this notice is not expected to result in a ``major rule'' as 
defined in 5 U.S.C. 804(2).
    Unfunded Mandates Reform Act of 1995: The changes set forth in this 
rulemaking do not involve a Federal intergovernmental mandate that will 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, of 100 million dollars (as adjusted) or more in any one 
year, or a Federal private sector mandate that will result in the 
expenditure by the private sector of 100 million dollars (as adjusted) 
or more in any one year, and will not significantly or uniquely affect 
small governments. Therefore, no actions are necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 
1501 et seq.
    Paperwork Reduction Act: This rulemaking involve information 
collection requirements which are subject to review by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). The collection of information involved in 
this rule has been reviewed and previously approved by OMB under 
control numbers control numbers 0651-0051 and 0651-0055.
    You may send comments regarding the collections of information 
associated with this rule, including suggestions for reducing the 
burden, to (1) The Office of Information and Regulatory Affairs, Office 
of Management and Budget, New Executive Office Building, Room 10202, 
725 17th Street NW., Washington, DC 20503, Attention: Nicholas A. 
Fraser, the Desk Officer for the United States Patent and Trademark 
Office; and (2) The Commissioner for Trademarks, by mail to P.O. Box 
1451, Alexandria, VA 22313-1451, attention Catherine Cain; by hand 
delivery to the Trademark Assistance Center, Concourse Level, James 
Madison Building-East Wing, 600 Dulany Street, Alexandria, VA 22314, 
attention Catherine Cain; or by electronic mail message via the Federal 
eRulemaking Portal. All comments submitted directly to the USPTO or 
provided on the Federal eRulemaking Portal should include the docket 
number (PTO-T-2016-0002).
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB control number.

List of Subjects

37 CFR Part 2

    Administrative practice and procedure, Trademarks.

37 CFR Part 7

    Administrative practice and procedure, International registration, 
Trademarks.

    For the reasons stated in the preamble and under the authority 
contained in 15 U.S.C. 1123 and 35 U.S.C. 2, as amended, the USPTO 
proposes to amend parts 2 and 7 of title 37 as follows:

PART 2--RULES OF PRACTICE IN TRADEMARK CASES

0
1. The authority citation for 37 CFR part 2 continues to read as 
follows:

    Authority: 15 U.S.C. 1113, 15 U.S.C. 1123, 35 U.S.C. 2, Section 
10 of Pub. L. 112-29, unless otherwise noted.

0
2. Amend Sec.  2.161 by revising paragraph (h) to read as follows:


Sec.  2.161  Requirements for a complete affidavit or declaration of 
continued use or excusable nonuse.

* * * * *
    (h) The Office may require the owner to furnish such information, 
exhibits, affidavits or declarations, and such additional specimens as 
may be reasonably necessary to the proper examination of the affidavit 
or declaration under section 8 of the Act or for the Office to assess 
and promote the accuracy and integrity of the register.
* * * * *

[[Page 40594]]

PART 7--RULES OF PRACTICE IN FILINGS PURSUANT TO THE PROTOCOL 
RELATING TO THE MADRID AGREEMENT CONCERNING THE INTERNATIONAL 
REGISTRATION OF MARKS

0
3. The authority citation for 37 CFR part 7 continues to read as 
follows:

    Authority: 15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted.

0
4. Amend Sec.  7.37 by revising paragraph (h) to read as follows:


Sec.  7.37  Requirements for a complete affidavit or declaration of use 
in commerce or excusable nonuse.

* * * * *
    (h) The Office may require the holder to furnish such information, 
exhibits, affidavits or declarations, and such additional specimens as 
may be reasonably necessary to the proper examination of the affidavit 
or declaration under section 71 of the Act or for the Office to assess 
and promote the accuracy and integrity of the register.
* * * * *

    Dated: June 16, 2016.
Michelle K. Lee,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2016-14791 Filed 6-21-16; 8:45 am]
 BILLING CODE 3510-16-PENVIRONMENTAL PROTECTION AGENCY