What is Section 8 Affidavit?
A USPTO filing declaring continued use or excusable non-use of a registered trademark, required between the 5th and 6th year and at each renewal.
A Section 8 affidavit is a mandatory maintenance filing required by the United States Patent and Trademark Office under Section 8 of the Lanham Act (15 U.S.C. Section 1058). It is a sworn declaration by the trademark owner attesting that the registered mark is still in use in commerce for the goods or services listed in the registration, or that non-use is excusable due to special circumstances and not due to an intention to abandon the mark.
The first Section 8 filing is due between the fifth and sixth anniversary of the registration date. A six-month grace period is available after the sixth year, but requires an additional surcharge. Subsequent Section 8 filings are required every 10 years in conjunction with the Section 9 renewal application, due between the ninth and tenth year of each registration period. Missing the deadline and the grace period results in automatic cancellation of the registration — there is no provision for reinstatement.
The Section 8 affidavit must be accompanied by a specimen of current use for each class of goods or services, demonstrating how the mark appears in commerce at the time of filing. If the mark is no longer used for certain goods or services, those items must be deleted from the registration. The affidavit is signed under penalty of perjury, making accuracy and honesty essential.
Why It Matters
The Section 8 affidavit is arguably the most consequential maintenance requirement in U.S. trademark law. Its strict deadlines and cancellation consequences mean that even a well-established registration with decades of use can be lost through administrative oversight. Unlike many other legal filings, there is no mechanism to revive a registration cancelled for failure to file a Section 8 — the mark must be re-filed as a new application, losing its original priority date and potentially facing new conflicts.
The Section 8 requirement also interacts with business strategy. When a company discontinues a product line or pivots its brand, it must evaluate whether the mark is still in use for the registered goods. Filing a Section 8 affidavit claiming use when the mark has been abandoned constitutes fraud, which can lead to cancellation of the entire registration and reputational harm.
How Signa Helps
Signa's API tracks registration dates and calculates Section 8 filing windows for all U.S. registrations in its database. IP teams can set up automated alerts through Signa's monitoring platform, receiving notifications as the five-year mark approaches and again as the grace period deadline nears. This proactive approach ensures that no registration is inadvertently lost to a missed Section 8 filing.
Signa's data also reveals when other marks' Section 8 filings have been missed, which is valuable during clearance searches. A registration that appears as a potential conflict may be vulnerable to cancellation if the owner has missed a Section 8 deadline — transforming an apparent barrier into a clearance opportunity.
Real-World Example
A boutique cosmetics brand registered "LunaGlow" with the USPTO five years ago for skincare products in Class 3 and makeup application tools in Class 21. As the Section 8 window opens, the brand's attorney uses Signa's monitoring alerts to begin preparation. Reviewing the current product line, the attorney discovers that the makeup tools line was discontinued two years ago. The attorney files the Section 8 affidavit for Class 3 only, deleting Class 21 from the registration and submitting a specimen showing the LunaGlow name on current skincare packaging sold through the brand's website. The attorney also files a Section 15 affidavit simultaneously, achieving incontestable status for the Class 3 registration — adding an extra layer of legal protection to the surviving portion of the mark.