“Incontestable” Trademarks: Introduction to Trademark Protection

In the United States, a trademark registration becomes incontestable after the filing of a Declaration under Section 15 of the Lanham Act, 15 U.S.C. § 1065. In order to meet the requirements of Section 15, the mark must have been in continuous use for at least five consecutive years from the date of registration, and must still be currently in use in commerce. The Section 15 Declaration also requires verification that “there has been no final decision adverse to the owner’s claim of ownership of such mark for those goods or services, or to the owner’s right to register the same or to keep the same on the register; and there is no proceeding involving said rights pending and not disposed of either in the Patent and Trademark Office (USPTO) or in the courts.” Marks registered on the Supplemental Register are not eligible to achieve incontestable status; therefore, the USPTO will not accept Section 15 Declarations for these marks.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas.  He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time.  Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.