As of this writing, the Trump Administration’s tariff policies remain in flux, with multiple changes to the affected countries, tariff rates, and the duration of tariffs which will be imposed on foreign imports. Therefore, both large and small businesses are assessing the impact of the increased tariffs.

One unintended consequence of higher tariffs is that businesses may struggle to maintain exclusivity of important business assets — their trademarks. The U.S. trademark system is based upon actual use, as evidenced by examples of the mark’s use in commerce for each trademark class and the specific goods and services the applicant has identified in its filings. If businesses temporarily cease importing products into the U.S. due to increased costs or pass the increases on to consumers, lowering demand, there is a risk of losing the exclusive right to their use of the trademark.

Fortunately, there are ways to mitigate the harm and navigate the uncertainties.

The Requirements for Maintaining a Trademark

Once a trademark is registered with the U.S. Patent and Trademark Office (USPTO), there are ongoing requirements to maintain the registration.

• Between the fifth and sixth years after the registration date, a Declaration of Use and/or Excusable Nonuse under Section 8 is due;
• After five years of continuous use, an optional Section 15 Declaration of Incontestability may be filed along with the Section 8 forms;
• Between the ninth and tenth years after the registration date, registrants must file a Declaration of Use and/or Excusable Nonuse and an Application for Renewal under Sections 8 and 9; and
• Every ten years after that, registrants must again file Declarations of Use and/or Excusable Nonuse and an Application for Renewal under Sections 8 and 9.

The Impact of Failure to File

As with the original trademark application, each subsequent declaration must be accompanied by examples of current use for each product or service identified in the registration. Failure to submit the complete declarations, along with proof of continued use or a valid reason for nonuse within the required timeframe, will result in cancellation of the trademark. Three consecutive years of nonuse creates a presumption of abandonment.

The presumption that the trademark owner has no intent to resume use of the mark is inferred from the circumstances surrounding the nonuse. The imposition of heightened tariffs MAY be recognized as an excusable nonuse as the cost of imported goods increases. A business might need to temporarily discontinue sales of a trademarked product if passing on the increase to its customers is untenable. However, the trademark owner must be proactive to rebut this presumption of abandonment to be eligible for a finding of excusable nonuse. This is true even though the tariff increases are widely publicized by the Administration, the media and trade associations.

Preparation and Recordkeeping Is Critical

Demonstrating that there is no intent to abandon the trademark begins when the special circumstances arise, not when a declaration of use is due. A string of USPTO decisions underscore that “showing” implies proof, and that merely stating that special circumstances exist beyond the holder’s control and there is no intention to abandon the mark is insufficient. See In re Conusa Corp., 32 USPQ2d 1857 (Comm’r Pats. 1993); In re Moorman Mfg. Co., 203 USPQ 712 (Comm’r Pats. 1979); Ex parte Astra Pharm. Prods., Inc., 118 USPQ 368 (Comm’r Pats. 1958); Ex parte Denver Chem. Mfg. Co., 118 USPQ 106 (Comm’r Pats. 1958). The declaration must state when the use in commerce was discontinued due to special circumstances beyond the owner’s control, the approximate time when the use is expected to resume, the specific reason for the nonuse, and must document the specific steps taken to resume use of the mark. Keeping a contemporaneous paper trail of efforts, including business records, direct to consumer advertising and/or communications to their client base, sales of inventory on hand before the tariff increases, negotiations with alternative suppliers and production facilities and other contracts to continue to use the mark will be essential to rebutting the presumption of abandonment.

If the higher tariffs are expected to continue indefinitely, a business might need to relocate their production and/or find alternative suppliers in the U.S. or other countries. According to a White House release dated March 10, 2025, Honda has said it will produce its next-generation Civic hybrid in Indiana instead of Mexico, and the South Korean automaker Hyundai Motors announced it would make hybrid vehicles at its new factory in Georgia and further localize production in the U.S. It could take years to build new facilities and train skilled workers to meet production standards. In this case, a scheduled timeline for production to resume should be included, even if circumstances may change, in order to support the case for excusable nonuse. Additionally, if the mark is temporarily out of production because of retooling or relocation of a plant or equipment, with production possible again at a scheduled time, the nonuse is excusable only if the holder shows that the plant or equipment is essential to the production of the goods and that alternative equipment is unavailable on the market. See In re New Eng. Mutual Life Ins. Co., 33 USPQ2d 1532 (Comm’r Pats. 1991).

The Consequences of a Presumption of Abandonment

Failure to meet the requirements necessary to successfully rebut the nonuse presumption will prevent the owner from exercising its exclusive rights to use the mark. A third party may begin using the mark on their competing goods, diminishing the associated goodwill of the brand in the minds of consumers, or even apply for an identical or confusingly similar mark with the USPTO for the same goods or services.

Given the substantial economic consequences of losing a valuable trademark or having it devalued by third party uses, trademark holders should preemptively seek legal advice on filing timely submission of maintenance documents as well as the more challenging filings in the event of a disruption in continuous use. Lutzker & Lutzker is available to provide guidance in either circumstance.