The U.S. Patent and Trademark Office (USPTO) has been ramping up efforts to combat bad faith trademark applications and false specimens, and making it easier for the public to challenge and cancel trademark registrations. This is good news for the integrity of the U.S. trademark system. However, U.S. trademark owners should be aware of the heightened scrutiny being applied to ensure their applications and specimens of use are in proper form to avoid audits and guard against third party challenges. 

USPTO Efforts to Combat Trademark Abuse

The U.S. trademark system is burdened with a large number of bad faith trademark applications and registrations for which there is no actual use of the mark in U.S. commerce or the goods and services being claimed far exceeds any actual use.

Some rely on specimens of use from “specimen farms,” which are fabricated websites designed to look like e-commerce platforms showing the trademark being used on goods. Screen shots from these “specimen farms” are being filed to obtain and renew registrations. These questionable registrations can block legitimate applications unless cancelled from the registry.

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In 2017, the USPTO made permanent a pilot program to conduct random audits of post-registration filings (specifically section 8 and section 71 affidavits) for registrations with more than one good or service per class. The USPTO began auditing approximately 10% of such filings and requiring the registrants to submit specimens of use for goods and services not shown in the specimen of record. 

In 2019, the USPTO also published guidance to help trademark examiners assess specimens that may have been digitally created/altered or otherwise mocked up. The guidance encourages Examiners to scrutinize suspicious specimens and, when necessary, conduct research to confirm whether the product depicted in the specimen actually exists and is being sold in U.S. commerce. 

If the specimen raises doubts or it appears unlikely that the trademark is actually being used in commerce, the examiner may request additional information from the applicant or issue a refusal. 

As part of the Trademark Modernization Act, new reexamination and expungement proceedings became available beginning in late 2021. These proceedings now allow anyone, even an anonymous filer, to petition the USPTO to cancel a trademark registration due to non-use: 

  • Reexamination applies to marks that were not in use on or before a relevant date (e.g., the filing date of a use-based application or the date of an allegation of use in an intent-to-use application). A petition for reexamination must be filed within the first five years after registration.
  • Expungement allows a party to challenge a mark on the grounds that it was never used in commerce with some or all of the listed goods/services. A petition for expungement can be filed between years 3 and 10 after registration.

To date, the USPTO has received over 600 third-party petitions for expungement and reexamination of registered trademarks. Approximately 60% of these have been instituted, and 75% of the instituted proceedings have resulted in a trademark cancellation. 

The USPTO Director also has the authority to initiate these proceedings on its own initiative without a third-party petition. The Director has initiated approximately 2,600 such actions with a cancellation rate over 99%. Notably, 91% of the registrations challenged in the Director-initiated proceedings were owned by applicants in China. 

In a significant policy shift announced in late 2024, the USPTO stated that audits of post-registration filings, which were previously random, will now be directed audits initiated when the registration file or the post-registration filing exhibit characteristics that call into question whether a mark is being used in commerce. This includes registration files with a specimen that appears digitally altered or made up of printouts from a “specimen farm” website.

Also, in June 2025, the USPTO put out a Request for Information seeking proposals from vendors to implement automated solutions, including artificial intelligence, to assist patent and trademark examiners. In the coming months or years, the USPTO will no doubt have AI tools to aid in securitizing specimens and use in commerce.  

Trademark Application and Registration Tips

To reduce the risk of refusal, audit, or cancellation, trademark owners should ensure that their marks are in use and supported by proper specimens. When filing a U.S. trademark application, a statement of use, or renewal, it’s important to:

  • Confirm that your trademark is in use for all goods and/or services listed in the application or registration. If some goods or services are not in use, consider removing them from the application/registration. 
  • Use accurate, unedited specimens that show genuine use of the mark in U.S. commerce. 
  • Consider submitting more than one specimen per class when you have multiple goods or services in the same class.
  • Maintain accurate records showing how your trademark is used in the marketplace in the event that further evidence is requested by the USPTO or your registration is challenged by a third party.
  • Respond promptly and thoroughly to any USPTO request for information, audit notice, or specimen refusal to preserve your trademark rights.

Clearing the Path for Registration

Finally, if your trademark application is refused due to a blocking registration, consult trademark counsel to assess whether the cited mark is genuinely in use for all of the relevant goods and services. If not, there may be grounds to petition for expungement or reexamination and clear the way without having to resort to a more costly TTAB proceeding.

Benjamin J. Lehberger

Any examples are solely for educational and illustrative purposes. They do not constitute legal advice and should not be construed as recommendations for specific actions. For personalized legal guidance, please consult a qualified attorney.

This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. The opinions expressed in this article are those of the author only and are not necessarily shared by Dilworth IP, its other attorneys, agents, or staff, or its clients.