A §15 Declaration is an optional trademark filing that can be made in a trademark registration. If chosen to be made, it can only be filed after 5 continuous years of use of the registered mark. This means that the mark has to have been used for 5 consecutive years, all of which fall after the date of registration, and that the mark is still in use. A §15 Declaration asserts that the mark is incontestable. For a mark which is found to be incontestable (which is a determination made in court), the registration becomes conclusive evidence of the validity of the mark, the registration, the ownership of the mark, and the owner’s exclusive right to use the mark in commerce. This means that these issues cannot be attacked, subject to some limited exceptions.
The §15 Declaration is made with a filing at the USPTO. When a §15 Declaration complies with statutory and rule-based requirements, the USPTO will update its records to acknowledge receipt of the declaration, and will also send a notice of acknowledgment to the owner of the trademark registration. The notice is recorded in the registration’s files, which are open and provide notice to the public that the declaration has been made. This notice is somewhat limited, though: acknowledging receipt of the affidavit or declaration provides notice to the public that an affidavit or declaration of incontestability has been filed, but it is not actually a determination by the USPTO that the registration is in fact incontestable. The question of whether the registration is incontestable is one that is made by a court should a proceeding involving the mark arise.
The §15 Declaration requires affirming that, not only has the mark been in use for 5 consecutive years, all of which fall after the registration, but that the mark is still in use. Further, the declarant must aver that there has been no final decision adverse to the owner’s claim of ownership, or to the owner’s right to register the mark or to keep the mark on the register. Finally, the declarant must state that there is no pending proceeding involving the mark, either before the USPTO or a court.