As 2021 drew to a close, the U.S. Patent and Trademark Office ("USPTO") introduced two new procedures pursuant to the Trademark Modernization Act of 2020 (the "Act"), providing new, streamlined avenues to seek cancellation of trademarks that are not, or have not at key times, been in actual use. An expungement proceeding applies where a registered mark has never been used in commerce in connection with some or all of the goods and services recited in the registration. A reexamination proceeding is available when a registered trademark was not in use in commerce in connection with some or all of the goods and services as of the filing date of the underlying application (in the case of a use-based application) or statement of use (in the case of an intent-to-use application). The Act also formalized a new claim for inter partes cancellation proceedings that the mark has never been in use but this article focuses only on the expungement and reexamination proceedings, which are entirely new types of proceedings.
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