Trademark Use Audits: How Registrations Get Picked

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The USPTO amended its practice for selecting registrations for audit during post-registration maintenance, in a document cited as 89 FR 85435, effective October 28, 2024. When the Office implemented its audit program in 2017, it announced that it would conduct random audits of certain affidavits or declarations filed each year; this policy change adds directed audits to that practice. Deleting goods after an audit has been issued carries a fee that deleting them beforehand does not; the sealed fact set does not state the dollar amount.

What is in force now?

The policy change is already live. The effective date is October 28, 2024, which is also the published date, so a maintenance desk that still describes audits as a random-only draw is describing a superseded selection method.

The sealed citation is 89 FR 85435. The agency on the notice is the Commerce Department. The text sits in 37 CFR Part 2 and 37 CFR Part 7. The sealed fact set does not include a RIN; the rule does not say a RIN here.

Nothing on this page is drawn from a rolling feed; it uses a sealed set of 1086 rules published September 1, 2023 – September 1, 2026 by 11 agencies. A later USPTO practice notice is outside that snapshot unless it is this document.

The readers are trademark maintenance paralegals and the attorneys who sign declarations of use, continued use, or excusable nonuse. The notice is about how a registration gets picked for audit during that maintenance process, not about how to file an original application.

Source: Federal Register / eCFR.

Who has to comply?

Any owner or counsel who files an affidavit or declaration of use, continued use, or excusable nonuse in a trademark case is in the pool the audit-selection change describes. The USPTO is not asking only random filers anymore. Directed audits are now part of the practice.

The document does not say that every registration will be audited. It says the Office is adding additional directed audits to the random audits of certain affidavits or declarations filed each year. "Certain" is the word in the 2017 announcement the notice restates. The sealed abstract does not define a percentage. The rule does not say a sampling rate here.

Madrid and domestic filings both sit in the CFR parts named: 37 CFR Part 2 for the Trademark Rules of Practice, and 37 CFR Part 7 for the Madrid rules. A firm that only docketed audits against Section 8 declarations on a U.S. registration, and ignored the Madrid maintenance path, is reading the selection change too narrowly on this record.

Law firms that already run maintenance in Alt Legal, a trademark docketing product that tracks USPTO deadlines and filing status, and that actually file the declaration in Trademark Center, the USPTO's electronic system for trademark applications and post-registration maintenance documents, are the two-product shop this page names. Alt Legal is the internal calendar. Trademark Center is the Office's filing door. Neither product decides whether a specimen supports a listed good.

The human who still has to act is the person who signs the declaration and the person who answers an audit office action. A docket that files first and reviews specimens later is the posture this selection change makes more expensive, because deleting goods after an audit has been issued carries a fee that deleting them beforehand does not.

What does the rule require?

To promote the accuracy and integrity of the trademark register, the USPTO is amending its practice concerning the selection of registrations for audit during the post-registration maintenance process, per 89 FR 85435.

When the USPTO implemented its audit program in 2017, it announced that it would conduct random audits of certain affidavits or declarations filed each year. To promote the accuracy and integrity of the trademark register, the USPTO is adding additional directed audits to its practice, as the same notice states.

That is the selection method this page can quote. Random selection of certain affidavits or declarations is not withdrawn. Directed audits are added. The sealed abstract does not list the directed-audit criteria as a numbered code list. The rule does not say that list here. A firm that needs the Office's current description of how a registration is chosen for a directed audit has to read the Federal Register notice itself rather than treat this summary as a substitute.

The response path is the audit itself: the Office asks for proof of use for additional goods or services beyond the specimen submitted with the declaration. The sealed fact set does not state a response-day count. The rule does not say that figure here. What this page is required to state is the fee limitation: deleting goods after an audit has been issued carries a fee that deleting them beforehand does not. The sealed set does not state the dollar amount. The rule does not say that amount here.

The policy change is effective October 28, 2024. A declaration filed on or after that date is in the selection practice the notice describes. The notice does not, on this record, give a grandfather clause for declarations already in the queue. The rule does not say a grandfather date.

Current regulation text is in 37 CFR Part 2 and 37 CFR Part 7. A maintenance memo that cites only the 2017 random-audit announcement, without the October 28, 2024 directed-audit addition, is incomplete.

Where do law firms commonly fall short?

The shortfalls are specimen and deletion-timing shortfalls. This section does not invent a USPTO cancellation count.

The first miss is treating audit risk as a lottery that can be ignored because "we have never been picked." Random audits of certain affidavits or declarations continue, and directed audits are now added, per 89 FR 85435. A portfolio that was never drawn at random can still be directed.

The second miss is filing the declaration of use against a long identification and waiting to prune goods until an audit office action arrives. Deleting goods after an audit has been issued carries a fee that deleting them beforehand does not. A pre-filing identification review is the cheaper path on that limitation, even though this sealed set does not print the fee.

The third miss is a specimen file that supports one good in a class and is silent on the rest. An audit asks for more. A firm that keeps only the specimen that accompanied the declaration is not ready for the response path the maintenance process uses.

The fourth miss is a docket that records the Section 8 or combined declaration deadline in Alt Legal but never stores the supporting specimens next to that deadline. When Trademark Center then issues an audit, the paralegal is reconstructing use evidence under a clock the sealed set does not quantify.

The fifth miss is ignoring 37 CFR Part 7. Madrid maintenance affidavits sit in the same selection change. A U.S.-only checklist will not catch them.

The sixth miss is telling the client that directed audits have a published percentage chance. The notice does not state that percentage. The rule does not say it here.

The seventh miss is treating an audit as optional correspondence. It is the Office's post-registration maintenance process. A no-response is not a strategy this page can bless, and the sealed set does not state a penalty amount for silence.

What self-audit can a firm run now?

The October 28, 2024 effective date has already passed. The checklist is against declarations in progress and against identifications that have not yet been pruned.

Numbered operating steps a reviewer can quote:

1. Inventory every open declaration of use, continued use, or excusable nonuse, including Madrid maintenance.

2. Replace "random audit only" language with 89 FR 85435, effective October 28, 2024.

3. Before filing, walk the identification with the client and delete goods that are not in use. That deletion is the one that does not carry the post-audit fee the differentiator on this page names.

4. Collect specimens that actually match the goods that will remain on the registration.

5. Store those specimens on the Alt Legal matter next to the declaration deadline, not in an email folder.

6. File the declaration in Trademark Center, and watch that same system for an audit office action.

7. If an audit issues, treat additional proof of use as a human attorney-and-client task. A docket can flag the action. It cannot decide whether the specimen is enough.

8. Do not quote a fee amount, a sampling rate, or a response-day count from this page. The rule does not say those figures here.

Steps 1, 2, 5, and 6 can be listed and routed. Steps 3, 4, 7, and 8 need the responsible attorney and the owner who will sign.

How does a firm operationalize this at volume?

Reconcile the matter docket against the change: each open matter maps to the filing, appearance, or fee the rule now requires and its due date. US Tech Automations flags matters still running on the superseded procedure and routes the correction to the responsible attorney.

Superseded procedure, here, is a maintenance checklist that still describes post-registration audits as random-only, or that files a long identification without a pre-declaration deletion review. The flag is the outdated memo. The route is to the trademark attorney on the matter. The product does not judge a specimen.

US Tech Automations is the homepage for that flag-and-route layer. It does not replace Alt Legal, and it does not file in Trademark Center.

Alt Legal remains the docket for the declaration deadline and the audit response date once an office action appears. Trademark Center remains the USPTO system where the affidavit is filed and where the audit correspondence arrives. The operational failure is a declaration that goes out of Trademark Center while the supporting specimens never entered Alt Legal, so the directed-audit response starts from an empty folder.

Firms already running matter-level legal deadlines can keep this policy on the same shelf as statute-of-limitations tracking, law firm client intake automation, and conflict-check software comparisons. Brief-drafting process of the kind in legal document automation for brief drafting is a different workflow; this page is only post-registration audit selection.

What can be automated is the hunt for maintenance matters whose memos still say "random only," and the prompt to run an identification review before the Trademark Center filing. What needs a human is the use-or-delete call, the specimen judgment, and the audit response.

Key Takeaways

• 89 FR 85435 is effective October 28, 2024 and sits in 37 CFR Part 2 and 37 CFR Part 7.

• Random audits of certain affidavits or declarations, announced when the program began in 2017, continue; the Office is adding directed audits.

• Deleting goods after an audit has been issued carries a fee that deleting them beforehand does not; the sealed set does not state the amount.

• The rule does not say a RIN, a sampling rate, or a response-day count in this sealed fact set.

• Flag maintenance matters still written as random-only, and leave specimen and identification decisions to the responsible attorney.

What questions do maintenance desks still ask?

When did the audit-selection change take effect?

This policy change is effective October 28, 2024, the same date it was published.

Did random audits end?

No. When the USPTO implemented its audit program in 2017, it announced random audits of certain affidavits or declarations filed each year, and this notice adds directed audits to that practice rather than replacing it.

What is a directed audit on this record?

The sealed abstract says the USPTO is adding additional directed audits to its practice to promote the accuracy and integrity of the trademark register. It does not print a criteria list; the rule does not say that list here.

Does deleting goods after an audit cost more than deleting them before?

Yes. Deleting goods after an audit has been issued carries a fee that deleting them beforehand does not. The sealed fact set does not state the dollar amount.

Is there a RIN for this document?

The rule does not say a RIN in this sealed fact set.

Which CFR parts are involved?

37 CFR Part 2 and 37 CFR Part 7, as cited in 89 FR 85435.

Does this page state how many days a firm has to answer an audit?

No. The rule does not say a response-day count in this sealed fact set. Read the Office action and the current regulation text.

This page is for informational purposes only. It is not legal or tax advice and does not create an attorney-client relationship. Read the rule and consult a qualified professional before filing a declaration or answering an audit.

Every date, citation, RIN, CFR reference, and figure in these posts is copied verbatim from the Federal Register and eCFR as of the snapshot date. Nothing is estimated, modeled, or extrapolated. This is not legal or tax advice.

Source: Federal Register / eCFR — 89 FR 85435, Changes in Post-Registration Audit Selection for Affidavits or Declarations of Use, Continued Use, or Excusable Nonuse in Trademark Cases.

Last reviewed: October 28, 2024

The exception path is the agentic workflow layer.