Authors: Jonathan Musch, Mary Ann Novak, and Isabel Peraza

In the United States, trademark rights are acquired through use of a mark in commerce. As a result, one seeking to register a mark with the U.S. Patent and Trademark Office (USPTO) must either be using that mark in commerce or have a genuine intent to use it  in the future.[1] To maintain a U.S. trademark registration, the registrant is required to periodically file maintenance documents that evidence the use of the mark in commerce and include a specimen (i.e., a real-world example) that shows the mark as it is used in commerce for the goods or services.[2] However, in recent years, the integrity of the U.S. trademark registry has been compromised by a growing number of registrations that do not reflect actual commercial use or were filed without a legitimate intent to use the mark in commerce. These registrations—many of which are maintained without proper use—unnecessarily clutter the registry, create barriers for legitimate trademark applicants, and undermine the system’s efficiency.

One common abuse involves registration arbitrage, where individuals or entities file applications with no intention of using the mark themselves, but instead hope to resell the registration to a commercial user for profit. These abusers target generic terms, common spelling errors, trending names, or acronyms across broad product categories to maximize resale value. Another form of abuse involves “zombie brands,” so named because they involve dead trademarks that an abuser attempts to revive. Opportunistic bad actors try to seize these marks to capitalize on lingering consumer recognition. These abusers have turned to a new tool in recent years: specimen farms, which are fake websites used to fabricate specimens that purport to show a mark’s use in commerce.

In a significant enforcement move, the USPTO has removed over 50,000 unused goods and services from trademark registrations.[3] This action is part of a broader initiative to combat fraudulent filings and ensure the integrity of the U.S. trademark system. The use of fraudulent filings by entities in certain countries, most notably China, has a significant impact on the trademark system. These filings are not submitted by companies seeking to expand their brand presence in the U.S., but rather by opportunistic entities aiming to stockpile marks to sell these registrations later to legitimate businesses at a premium, or to profit from government subsidies given by the Chinese government to those who file trademark registration in the United States.[4]

In 2017, the USPTO launched the Post Registration Audit Program. This initiative was introduced in response to concerns about “deadwood”—trademark registrations that include goods or services that are no longer in use or never were used in commerce. Under the program, the USPTO randomly selects certain registrations with required maintenance filings for additional scrutiny—specifically, declarations of continued use under Section 8 or 71. When selected, registrants must provide proof of current use for specific goods or services identified in their registration. If they cannot do so, those goods or services can be deleted from the registration, though deletion will result in incurring a fee. Should a registrant fail to respond or pay a required fee, the registration may be canceled altogether. Data from the program shows that more than 50% of audited registrations have had goods or services removed, demonstrating the prevalence of inaccuracies and reinforcing the need for this compliance mechanism.[5] Notably, such inaccuracies can exist even among well-intentioned companies who have shifted their goods or services over time but have not deleted those items for which a mark is no longer in use from their trademark registrations. This highlights the importance of regular review of your portfolio with experienced counsel.

In 2024, the USPTO further enhanced the program by introducing “directed audits”—targeted reviews based on patterns that suggest potential abuse. These include filings that contain digitally altered specimens or specimens sourced from so-called “specimen farms” that fabricate evidence of use. Directed audits allow the USPTO to proactively investigate applications that present red flags, rather than relying solely on random selection.[6]

Companies often become aware of suspect third-party registrations when seeking to clear or register their own mark. If you suspect a registration that potentially conflicts with your mark is questionable, you have options—you don’t have to wait for the USPTO to take action. Indications that a registration is questionable include:

  • Suspect Specimens: Indications that a specimen is suspect include: pictures that appear to be digitally altered, broken website links, facially invalid or overly vague information on the “Contact Us” page of a website, and sales pages including products and brands that aren’t categorized or sorted logically. [7] Additionally, unusually discounted items, items only available for sale in foreign currencies, identical language across listings for varied products, or product descriptions that do not appear to match the product shown may also be suggestive of a suspect specimen.
  • Unusual registration history: Utilize the USPTO’s databases to determine the number of marks the applicant has filed. An overwhelming number of trademark applications spanning unrelated product categories signals potential misuse.
  • No indication of continued use: Look for signs that the registration is not actually currently being used. Some questions to consider are: is the registrant still in business? Is the registrant’s website still active? If the registrant had a social media presence, have they made any posts in the past several years? Alternatively, is there an older post that indicates they are closing their business? Do the goods or services listed in the application align with the registrant’s present business?
  • Illogical goods and services: Registrations that claim wildly different and seemingly unrelated categories of goods and services—such as pet food and wedding dresses—can signal a lack of genuine commercial use.

If the mark or the registrant appears suspicious, it may be a fraudulent filing that can be removed from the trademark registry.[8] If you determine a registration is suspect, there are several tools you can use to address it:

  • Letter of Protest: If the application is still pending, certain evidence relating to its registrability can be brought to the USPTO’s attention via a letter of protest, so that the examiner can review that evidence before approval.
  • TTAB Opposition or Cancellation: File an opposition proceeding with the Trademark Trial and Appeal Board (“TTAB”) if the opposition period has not yet passed, or a cancellation proceeding with the TTAB if the period has passed. These proceedings let you formally argue that the registration should be rejected or revoked.[9]
  • Expungement: The Trademark Modernization Act of 2020 (the “TMA”) provides additional options for addressing marks that do not appear to be in use. One such option is expungement, which can be used anytime between three and ten years after registration if the owner has never used the trademark in commerce in connection with some or all of the goods or services listed in the registration.[10]
  • Reexamination: A second option under the TMA is to request a reexamination proceeding. Reexamination is available if the owner failed to use the trademark in commerce with some or all of the listed goods or services by the relevant date, which is either the filing date if the application was filed based on use in commerce and not later amended, or, if it was filed or amended to intent-to-use, the date the USPTO accepted the amendment to allege use or the end of the statement-of-use period for an accepted statement of use. Note that re-examination is only available in the first five years after registration.[11]

Each of these options requires evidence, but the USPTO provides clear guidance on what types of documents are persuasive.[12] Because these options are administered through the USPTO, they present a cost-efficient alternative to litigation in the federal courts. Hilgers Graben’s experienced trademark team can help you assess your options and pursue the most effective, strategic path forward.

About the Authors

Jonathan Musch

Jonathan Musch, Partner

Jon is a litigator whose practice is directed to providing solutions for clients of all sizes, tailoring the approach to an understanding of the client’s business goals. Follow him on LinkedIn here.

Mary Ann Novak

Mary Ann Novak, Partner

Mary Ann is an experienced litigator whose trial practice focuses on complex commercial disputes, with particular emphasis on intellectual property disputes. Follow her on LinkedIn here.

Isabel Peraza

Isabel Peraza, Associate

Isabel is a litigator, whose practice focuses on complex commercial litigation, with a particular emphasis on intellectual property litigation. Follow her on LinkedIn here.

[1] See 15 U.S.C. § 1051 (requiring use in commerce or intent to use in commerce to apply for federal trademark registration).

[2] See 15 U.S.C. §§ 1058–59.

[3] 50,000 Goods and Services Canceled from Trademark Registrations Using TMA Proceedings, U.S Patent and Trademark Office (May 8, 2025), https://www.uspto.gov/subscription-center/2025/50000-goods-and-services-canceled-trademark-registrations-using-tma.</p?

[4] See U.S Patent and Trademark Office, Trademarks and Patents in China: the Impact of Non-Market Factors on Filing Trends and IP Systems (Jan. 2021), https://www.uspto.gov/sites/default/files/documents/USPTO-TrademarkPatentsInChina.pdf (“China has reportedly adopted more than 70 subnational trademark subsidy measures, including measures for domestic and foreign applications and registrations.”).

[5] Post Registration Audit Program, U.S Patent and Trademark Office , https://www.uspto.gov/trademarks/maintain/post-registration-audit-program (last visited May 16, 2025).

[6] Id.

[7] The USPTO provides a list of several other red flags to keep an eye out for. Id.

[8]  Third Parties Can Challenge Applications or Registrations With Invalid Specimens from E-Commerce Specimen Farm Websites, U.S Patent and Trademark Office ,  https://www.uspto.gov/trademarks/protect/challenge-invalid-specimens?utm_source=chatgpt.com (last visited May 16, 2025).

[9]  Requesting an Expungement or Reexamination Proceeding, U.S Patent and Trademark Office , https://www.uspto.gov/trademarks/protect/requesting-expungement-or-reexamination-proceeding?utm_source=chatgpt.com (last visited May 16, 2025).

[10] Id.

[11] Id.

[12] Examples of Index of Evidence for Trademark Modernization Act (TMA) Expungement and Reexamination Proceedings, U.S Patent and Trademark Office , https://www.uspto.gov/trademarks/laws/2020-modernization-act-examples-index-evidence (last visited May 30, 2025).