Section 8 Declaration of Continued Use Deadlines

What Is a Section 8 Declaration?

A Section 8 declaration, formally known as a Declaration of Use or Excusable Nonuse under Section 8 of the Trademark Act (15 U.S.C. § 1058), is a sworn statement filed with the USPTO affirming that a registered trademark is still being used in commerce in connection with the goods or services listed in the registration. It serves as proof that the mark remains active and that the registration is not simply occupying space on the register.

The purpose of Section 8 is to keep the trademark register clean. The USPTO does not want registrations sitting on the books for marks that are no longer in use. By requiring periodic declarations of continued use, the system ensures that only active marks retain the protections of federal registration.

Filing a Section 8 declaration requires the registrant to submit a verified statement that the mark is in use in commerce for each class of goods or services covered by the registration, along with a specimen showing current use. If the mark is not in use for some goods or services, those items must be deleted from the registration. If the mark is not in use at all, the registrant may file a declaration of excusable nonuse — but only if the nonuse is due to special circumstances and not an intent to abandon the mark.

A Section 8 declaration is not optional. It is a mandatory requirement to maintain a trademark registration. No matter how strong your mark is, how long you have been using it, or how much you invested in obtaining the registration — if you do not file Section 8 on time, the registration is cancelled.

When Is a Section 8 Declaration Due?

Section 8 declarations follow a specific schedule tied to the registration date of the trademark:

First filing: Between years 5 and 6. The initial Section 8 declaration must be filed during the one-year window beginning on the fifth anniversary of the registration date and ending on the sixth anniversary. For example, if a trademark was registered on March 15, 2020, the Section 8 filing window opens on March 15, 2025 and closes on March 15, 2026.

Subsequent filings: Every 10 years. After the initial Section 8 filing, subsequent declarations are due within the one-year window preceding each ten-year anniversary of the registration date. The Section 8 filed at the ten-year mark (and every ten years after) is typically combined with a Section 9 renewal.

Six-month grace period. If the Section 8 is not filed within the regular filing window, a six-month grace period is available. However, the grace period comes with an additional fee per class — currently $200 per class on top of the standard filing fee. The grace period begins immediately after the regular filing window closes.

Here is a concrete timeline for a mark registered on January 10, 2019:

• Regular filing window (year 5-6): January 10, 2024 through January 10, 2025
• Grace period: January 11, 2025 through July 10, 2025
• Absolute deadline: July 10, 2025 — after this date, the registration is cancelled
• Next Section 8 (year 9-10, combined with Section 9): January 10, 2028 through January 10, 2029
• Grace period: January 11, 2029 through July 10, 2029

The filing window structure is designed to give registrants ample time — a full year to file under regular conditions, plus six more months in the grace period. Despite this generosity, Section 8 remains one of the most commonly missed deadlines in trademark practice. The reason is simple: five years (or ten) is a long time, and without a systematic reminder, these deadlines slip through the cracks.

Docketing software that calculates these windows automatically from the registration date eliminates the most common failure mode — simply forgetting that a filing was due.

What Happens If You Miss a Section 8 Deadline

Of all the deadlines in trademark practice, Section 8 is the one that carries the most severe and irreversible consequences.

The registration is cancelled. If no Section 8 declaration is filed within the filing window and the grace period expires, the USPTO cancels the registration. This is not a provisional cancellation or a warning. The registration is gone.

There is no revival. Unlike an abandoned application, where a petition to revive may be filed with a showing of unintentional delay, a cancelled registration due to a missed Section 8 has no revival mechanism. The Trademark Act does not provide one. The TTAB cannot restore it. The Commissioner cannot waive it. The registration is permanently cancelled.

The owner must re-file. To obtain federal registration again, the owner must file a new trademark application, pay new filing fees, go through the full examination process, survive any opposition, and wait for registration to issue. There is no expedited path. The new application receives a new filing date — the original priority date is lost.

The mark may no longer be available. During the time between cancellation and re-filing, other parties may have filed applications for the same or similar marks. The owner's common-law rights may still exist (assuming continued use), but the federal registration and its nationwide constructive notice benefit are gone. Enforcing rights becomes significantly more expensive and uncertain without registration.

Malpractice exposure for the attorney. When an attorney is responsible for managing a client's trademark portfolio and fails to file a Section 8 declaration, the resulting cancellation is precisely the kind of harm that gives rise to a legal malpractice claim. The damages are concrete and quantifiable: the cost of re-filing, the loss of the priority date, potential lost business if a competitor adopted a similar mark in the interim, and the diminished enforceability of the mark during the gap period.

The combination of severity (permanent cancellation) and frequency (deadlines that arise years apart) makes Section 8 the single most important deadline to have in a reliable automated tracking system. It is not the deadline you will miss this week. It is the deadline you will miss in five years because you were not thinking about it.

Combined Section 8 and Section 9 Filings

At the ten-year mark and every ten years thereafter, the Section 8 declaration of continued use and the Section 9 renewal come due at the same time. The USPTO allows (and encourages) these to be filed together as a combined Section 8 and 9 filing using a single form.

The combined filing is more efficient and costs less than filing them separately. However, it is important to understand that Section 8 and Section 9 serve different purposes:

• Section 8 declares that the mark is still in use in commerce. It requires a specimen showing current use and a verified statement. Without it, the registration is cancelled regardless of whether Section 9 is filed.
• Section 9 renews the registration for another ten-year term. It is an administrative renewal that extends the life of the registration. Without it, the registration expires at the end of its current term.

A common mistake is to assume that filing Section 9 alone is sufficient. It is not. Both must be filed. If only the Section 9 renewal is submitted without the Section 8 declaration of use, the registration will still be cancelled for failure to demonstrate continued use.

Note that the first Section 8 filing (between years 5 and 6) stands alone — Section 9 is not due at that point. It is only at year 10 and beyond that the two coincide. Docketing software that understands this distinction generates the correct filings at the correct times without requiring the practitioner to remember which combination is due.

How DeadlineDocket Tracks Section 8 Deadlines

DeadlineDocket calculates Section 8 deadlines automatically from the registration date stored in the USPTO TSDR record. When you import a registered trademark, the system:

Determines the current maintenance cycle. Based on the registration date and the current date, the system identifies whether the mark is approaching its first Section 8 (years 5-6), a combined Section 8 and 9 (years 9-10, 19-20, etc.), or is between maintenance periods.

Checks for prior filings. The system reads the prosecution history from TSDR to determine whether a Section 8 declaration has already been filed for the current cycle. If a "SECTION 8-ACCEPTED" or similar event appears in the history, the system knows the deadline has been met and does not generate a duplicate.

Generates the deadline with the correct window. The deadline is created with the filing window open date and the due date, accounting for the one-year regular filing period. The system tracks both the regular deadline and the grace period deadline so you can see exactly how much time remains.

Verifies filings against TSDR. When you mark a Section 8 as filed, DeadlineDocket monitors TSDR for a matching event. The system checks for "SECTION 8 RECEIVED" events and, subsequently, "SECTION 8 ACCEPTED" events. If the filing does not appear in TSDR after multiple verification attempts, you receive an alert — giving you time to investigate and re-file if necessary before the window closes.

Handles combined filings. For the ten-year and subsequent cycles, the system recognizes that Section 8 and Section 9 are due together and generates both deadlines. Combined "SECTION 8 & 9" events in TSDR are properly matched to both deadlines during verification.

The result is a system that never forgets a Section 8 deadline, regardless of how far in the future it falls. A mark registered today will have its first Section 8 deadline tracked five years from now without any manual intervention.