Showing a new brand before it launches does not count as use in commerce
Reexamination lets anyone challenge a registration on the ground that the mark was not really in use when the owner said it was. This precedent shows that a specimen can look acceptable and still fail, because the Board will read it against the owner's later announcements and the absence of any other dated use. Owners planning a rebrand that will launch after their last statement-of-use deadline should file a new application instead.
A mark placed on a specimen to hold a name until a later launch is not "use in commerce", even if the specimen itself would pass examination. That is the rule of a precedential Board decision mailed April 29, 2026, which applies the statute's bar on use "made merely to reserve a right in a mark" to an intent-to-use registration in a §16B reexamination. It follows the Federal Circuit's reading of "bona fide use" in Couture v. Playdom, Lens.com and M.Z. Berger, and builds on In re Locus Link USA (TTAB 2024), which held that an examiner's acceptance of a specimen does not bind the Office in a Trademark Modernization Act proceeding (slip op. at 5, 25, 28).
The rule: reservation is judged on the whole record
What is tested. Reexamination asks whether the mark was in use in commerce on the "relevant date". For an intent-to-use registration that is the statement-of-use deadline, including all extensions; for a use-based application it is the filing date. Reexamination is therefore available only for registrations based on use under §1(a) (at 3–4). Use in commerce means bona fide use in the ordinary course of trade, and contemplates "commercial use of the type common to the particular industry in question" (at 5, 25–26).
The holding. The Board did not decide whether the wording on the specimen would be seen as a mark. "Even if" it would, the use was "merely use made in an attempt to reserve a right in the mark" (at 31). Three kinds of evidence supported that finding, and none depended on the specimen alone:
- Later events. A name change executed after the deadline, and the owner's own web pages and press coverage announcing that the new brand would launch on a later date (at 31–32, 34–38).
- Missing ordinary-course use. No other dated document showing the mark as a source indicator by the deadline, where the industry would be expected to produce signage, cards, checks, brochures or client communications (at 32).
- Conclusory testimony. A declarant's statement that use was bona fide is a legal conclusion and carries no weight (at 33).
The Board also said the result would be the same "whether it was in the process of rebranding or not" (at 39): the question is whether the specimen shows bona fide source-identifying use, and a rebrand is simply where the issue arises most often.
Procedural points. The Director's decision to institute is "final and non-reviewable" (at 4). Prior acceptance of a specimen binds neither the Director nor the Board, and resubmitting the same specimen, or a verified statement alone, will "likely be insufficient" to rebut a prima facie case (at 5–6, 28 & n.74). A search of USPTO records is not probative of nonuse, because the trademark database is not a repository of evidence of use (at 9 n.13).
Limits. The flexible reading of "bona fide use" still covers test markets, infrequent sales of large or expensive items, shipments of a drug awaiting FDA approval, and interruptions caused by special circumstances. Financial services offered during a rebrand are not that kind of case (at 26, 39–40 n.84). The decision turns on a record in which the owner itself said the brand would launch later; it does not hold that a tagline or a single web page can never be use.
What it changes
The following is the editors' view, not part of the decision.
- For applicants: the last statement-of-use deadline works as a hard business date. When a launch will fall after it, a new intent-to-use application, which footnote 85 notes is always available, is a safer course than a statement of use resting on a placeholder (at 41 n.85).
- For registrants: keep dated evidence of first real use, in the forms the industry ordinarily uses. That, not a declaration or the original specimen, is what rebuts a reexamination.
- For everyone: expect public history to be read against the sworn date. Announcements, press coverage and archived pages saying a brand "is becoming" something are exactly what petitioners collect.
- For petitioners: a focused set of dated captures, store listings and the registrant's own announcements was enough here to support institution.
The case
Teachers Credit Union filed an intent-to-use application for EVERWISE CREDIT UNION in June 2019, took five extensions, and filed its statement of use on April 14, 2023, the last available day. Its only specimen was a page of its existing site headed "TCU Teachers Credit Union" and "Why TCU?", with the tagline "Because we are an Everwise Credit Union™" and two lower-case mentions in body text, which the Board found would not be seen as source indicators (at 7, 26–31). The registration issued in May 2023. A third party petitioned for reexamination on July 20, 2023, citing Wayback Machine captures and app listings for "TCU Mobile Banking" (at 7–9). The registrant's own pages from June 2023 said "TCU is becoming Everwise" with a launch date of June 26, 2023, the day its name change was executed. None of the fifteen declaration exhibits used the new name (at 2 n.1, 33–38). The Board affirmed the examiner, and the registration will be cancelled. The registrant had already filed a new application claiming first use on June 26, 2023 (at 41 & n.85).
Data angle
The record was built largely from archived web captures, which fixed what the website showed before and after the deadline (at 8, 34–37). Dated archival data is now ordinary evidence in register-cleanup proceedings. The USPTO said on September 30, 2026 that more than 100,000 unused goods and services have been cancelled through expungement and reexamination (see The Wire).