Excusable Non-Use of a TM: What to Know When Govt. Approval Delays Commercial Use

Trademark owners are generally required to use their marks in commerce to maintain their federal registration. However, US trademark law recognizes that certain circumstances can delay use, without penalizing the owner or resulting in abandonment.

One of the most common and accepted scenarios is waiting for government regulatory approval—a delay that, when properly documented and justified, may qualify as excusable non-use under Section 8 of the Lanham Act.

Below, we break down how trademark owners can protect their rights while navigating regulatory delays or other exceptional circumstances.

1. Regulatory Approval as Excusable Non-Use

If the use of a trademark is delayed due to pending government agency approval, that delay can qualify as excusable non-use. Common examples include:

• FDA approval for pharmaceuticals or medical devices
• FCC approval for broadcasting or telecommunications
• ATF or USDA certifications for alcohol or agricultural products

In these cases, the trademark owner must show that:

• They are actively pursuing the required approval
• The delay is beyond their control
• They have a bona fide intent to use the mark once approval is secured

2. Importance of Documentation

To support a claim of excusable non-use, it is critical to keep detailed records of efforts made to obtain regulatory approval. These may include:

• Submission dates and confirmation of filings
• Correspondence with the government agency
• Records of follow-up inquiries or resubmissions
• Any documentation demonstrating diligence and good faith

This evidence may be requested by the USPTO during the Section 8 Declaration of Continued Use filing period.

3. The Delay Must Be Temporary

Excusable non-use must be temporary, not open-ended. The trademark owner must:

• Continue to actively pursue authorization
• Maintain a clear and realistic plan for future use
• Avoid abandoning the project or indefinitely shelving the product or service

Failure to follow through or demonstrate ongoing intent to use the mark could jeopardize the registration.

4. Other Recognized Grounds for Excusable Non-Use

In addition to regulatory delays, courts and the USPTO may accept the following as valid justifications:

• Natural disasters or catastrophic events (e.g., hurricane, fire, pandemic)
• Military service preventing use
• Government-imposed trade restrictions or embargoes
• Bankruptcy or financial hardship that temporarily halts operations

Again, the key is to demonstrate that the situation is outside the owner’s control and that use will resume as soon as possible.

Maintain Your Trademark Rights Through Proactive Planning

When commercial use of a trademark is delayed due to factors like regulatory approval, it is possible to preserve your rights through a claim of excusable non-use. However, success depends on diligent documentation, a clear intent to resume use, and proactive communication with the USPTO.

If you’re anticipating a regulatory delay or face other extraordinary circumstances affecting trademark use, consult with trademark counsel to develop a strategy that protects your rights and positions your brand for long-term enforcement.