Trademark Expungement and Reexamination: How to Clear Unused Deadwood Registrations Blocking Your Brand

Part 1 of my five-part series on clearing unused trademark registrations off the federal register. The series list is at the end of this post.

Has this happened to you? You have built a real business under a real brand. You file a federal trademark application, and months later the USPTO refuses it because of a similar mark that is already registered. You look up that registration and find nothing behind it: no website, no products, no storefront, no sign the owner ever sold anything under the mark.

Trademark lawyers call registrations like this “deadwood.” Some were obtained with doctored or mocked-up specimens. Some list dozens of products the owner never sold. Some simply outlived the business behind them. Deadwood protects nobody’s brand, but it still blocks legitimate applicants, because the USPTO examines your application against the register as it stands.

The problem is large enough that the USPTO now treats it as an enforcement priority. In August 2025, the Office terminated more than 52,000 applications and registrations tied to a single foreign filing operation. In May 2026, it announced 11 more administrative orders targeting roughly 10,500 invalid filings. But the Office cannot find every bad registration on its own, and it will not necessarily find the one standing in your way.

That is where trademark expungement and reexamination proceedings come in. These two proceedings, created by the Trademark Modernization Act of 2020 (TMA) and available since December 18, 2021, let any person ask the USPTO to cancel goods and services that were never used, or not used when they had to be. They are faster and cheaper than litigation, and once the USPTO accepts your petition, the Office takes over the matter without your involvement. This guide explains how they work, when to use each one, and how to give your petition the best chance of success.

Expungement vs. Reexamination: Which One Applies?

Both proceedings attack the same problem, which is nonuse. Fundamentally, trademark rights are based on use of the trademark in the marketplace, and these two proceedings test that.  They ask different questions, however, and they cover different registrations and time windows.

Expungement asks whether the mark was ever used in commerce with the challenged goods or services. If the registrant never sold a given product under the mark, that product can be expunged from the registration.

Reexamination asks whether the mark was in use on a specific date, called the “relevant date.” That date is when the registrant was required to be using the mark:

• Use-based applications (Section 1(a)): the application filing date.
• Intent-to-use applications (Section 1(b)): the later of the date an amendment to allege use was filed or the deadline (including extensions) for filing the statement of use.

This distinction matters. In reexamination, use that began after the relevant date does not save the registration. A registrant who claimed use too early can lose the registration even if it is selling products today.

	Expungement	Reexamination
Core question	Was the mark ever used for these goods or services?	Was the mark in use on the relevant date?
Filing window	3 to 10 years after registration	First 5 years after registration
Registrations covered	Sections 1, 44, and 66(a), including foreign and Madrid Protocol registrations	Section 1 (use-based) only
USPTO fee	$400 per class	$400 per class
Who may file	Anyone; the real party in interest can usually stay anonymous	Anyone; the real party in interest can usually stay anonymous

In practice, reexamination is often the sharper tool for a registration less than five years old, especially when the specimen looks manufactured. Expungement is the only option against a Madrid Protocol or foreign-based registration, and the only option once a registration is more than five years old. For registrations more than ten years old, neither is available, and a cancellation proceeding before the Trademark Trial and Appeal Board (TTAB) is the route.

Both proceedings can target only part of a registration. If a registration lists twenty products and three of them overlap with your business, you can challenge just those three.

Practical Tip: Before deciding anything, pull up the blocking registration in the USPTO’s TSDR database and look at two things, at a minimum: its filing basis and the specimen the owner submitted. Those two items can usually tell you which proceeding is available and how strong your case is likely to be.

Filing the Petition: What It Must Include

A petition for expungement or reexamination is filed on a USPTO form and must include, among other things:

• The $400 fee for each class being challenged
• The registration number and the basis for the petition (expungement or reexamination)
• The petitioner’s name, domicile address, and email address, and, for a petitioner domiciled outside the United States, its U.S. attorney
• A list of each good or service being challenged
• A verified statement describing the reasonable investigation of nonuse that was conducted: each source searched, how and when it was searched, and what was found
• Clear copies of all supporting evidence, with an itemized index

If a petition is incomplete, the USPTO generally gives the petitioner 30 days to fix it. A petition cannot be withdrawn once it is filed.

The Reasonable Investigation: Where Petitions Succeed or Fail

The USPTO will institute a proceeding only if the petition establishes a prima facie case of nonuse. That case rests on the investigation, and the bar is higher than many first-time petitioners expect. The USPTO has said that a single internet search engine query likely is not a reasonable investigation. On the other hand, an exhaustive search is not required. The investigation should focus on where the specific goods or services would normally be advertised and sold.

Appropriate sources include:

• Federal and state trademark records
• The registrant’s own websites and social media, current and archived
• Online retailers and marketplaces where the goods would likely be sold
• Publications and review sites that would likely discuss the goods or services
• State and federal business registration and regulatory agency records
• The registrant’s marketplace activity, such as attempts to buy the goods or contact the registrant
• Litigation or administrative records that may bear on use or nonuse

Practical tips drawn from USPTO guidance and practitioner experience:

1. Screenshot negative results. If a search of Amazon, Walmart, or Target returns zero hits for the mark, capture the screen that shows zero hits. Record the date of each search and the search terms used.
2. Use the Wayback Machine. Archived captures of the registrant’s website can show the mark was not in use on a past date. Include the date range searched and the date you accessed the archive.
3. Search more than one channel. Do not rely on one large marketplace. Add specialty retailers that fit the goods, such as online pharmacies for health products or reservation platforms for restaurant services.
4. Check social media for company-name marks. Most real businesses maintain at least one profile.
5. Run reverse image searches for design marks and specimens. A design mark calls for an image search on Google, TinEye, or a similar tool. A reverse image search of the registrant’s specimen can also reveal a stock photo with the mark digitally added. (For more on design marks, see Word Marks vs. Design Marks: What’s the Difference?)
6. Look for regulatory filings. In regulated industries, the absence of required registrations or listings is persuasive evidence of nonuse.
7. Disclose what you find. Attorneys owe the USPTO a duty of candor in these one-sided proceedings. If the investigation turns up evidence of use, it must be disclosed.

If the USPTO declines to institute a proceeding, that decision is final and cannot be appealed, and the fee is not refunded. A petitioner can file again with stronger evidence, but it is far better to build the record properly the first time.

Practical Tip: Document the investigation as you go, not afterward. Save each screenshot with the date, the search terms, and the web address, preferably on the screenshot itself. Rebuilding an investigation from memory weeks later is slow, and gaps in the record can lead the USPTO to decline a petition.

What Happens After You File

1. Public notice. The petition becomes part of the registration’s public record, and the USPTO notifies the registrant.
2. Institution decision. The USPTO decides whether the petition makes a prima facie case of nonuse. It may institute the proceeding for all, some, or none of the challenged goods and services.
3. Your role ends. Once a proceeding is instituted, the petitioner is not a party. There is no discovery and no trial. The USPTO issues an Office action to the registrant and evaluates the response itself.
4. The registrant responds. The registrant has three months to respond, with one one-month extension available for a fee. It may submit evidence of use, delete the challenged goods and services, or surrender the registration. For registrations based on foreign filings (Sections 44 and 66(a)), the registrant may also try to show special circumstances excusing its nonuse, which is a demanding standard.
5. Decision. If the registrant does not respond, or its evidence does not establish use, the USPTO issues a final action. The registrant may request reconsideration or appeal to the TTAB. The challenged goods and services are cancelled once the appeal period runs out or any appeal is resolved against the registrant (see TMEP §1716).

According to the USPTO, these proceedings take roughly 4.5 to 12 months, depending on volume.

Two rules limit repeat challenges. While a proceeding is pending, no new expungement or reexamination can be instituted for the same goods or services. And once a registrant proves use in an expungement proceeding, those goods and services are generally protected from later expungement challenges. That is one more reason to build a strong record the first time.

Practical Tip: After filing, keep an eye on the challenged registration’s TSDR record. The USPTO’s decisions and the registrant’s response appear there, and a registrant that quietly deletes the challenged goods may clear your path before the proceeding formally ends.

Expungement and Reexamination vs. a TTAB Cancellation

The same registration can be challenged both ways, and the two routes are not interchangeable.

	Expungement or reexamination	TTAB cancellation
Grounds	Nonuse only	Nonuse, abandonment, likelihood of confusion, fraud, and others
Evidence	Must be filed with the petition	Developed during the case through discovery and trial
Petitioner’s role	Not a party after institution	A party through the end of the case
Who may file	Anyone; identity can usually stay anonymous	Only a party with a statutory basis to bring the claim
USPTO fee	$400 per class	$600 per class, with $200 refunded if the registrant defaults
Typical time	About 4.5 to 12 months	About 4 months for a default to 3 years for a trial

A TTAB cancellation is the better choice when the mark was once used and later abandoned, when the registration is more than ten years old, or when the dispute is about more than nonuse. It can also be faster and cheaper when the registrant is likely to default. For a clear case of a registration that was never properly used, an expungement or reexamination petition is usually the more efficient tool.

Strategy: Protecting Your Own Application While the Petition Runs

• File your application. If you have not filed yet, consider filing a trademark application now. Your filing date sets your priority against later applicants, and nothing about a petition requires you to wait.
• Ask for suspension. If your application has already been refused because of the challenged registration, tell the examining attorney about the pending proceeding. The USPTO will often suspend your application until the proceeding ends, which keeps your application and its filing date alive.
• Consider talking to the registrant. A short letter, a purchase of the registration, or a coexistence agreement sometimes solves the problem faster. A ready-to-file petition can give you real leverage in that conversation. There are risks, however; the registrant might be live and legitimate, and it might ask you to stop using or even threaten you with an infringement action. You must be careful here.
• Match the tool to the facts. The registration’s age, its filing basis, and whether the mark was ever used determine whether expungement, reexamination, or a TTAB cancellation fits best.

Practical Tip: Finish your investigation before you contact the registrant. If the registrant turns out to be an active business, you want to know that before you send a letter, not after.

Don’t Let Deadwood Block Your Brand

If an unused registration is blocking your application, or if a clearance search turned up one you suspect was never used, you have more options than you might think. We prepare expungement and reexamination petitions, handle TTAB cancellations, and manage the application strategy around them. With many expungement and reexamination petitions, we can follow our typical billing structure and quote the job up front.

Call us at (602) 281-6481 or contact Phoenix trademark attorney Tom Galvani to discuss the registration standing in your way.

The Series

1. Trademark Expungement and Reexamination (this post)
2. Amazon and E-Commerce Sellers: How to Remove an Unused Trademark Registration Blocking Your Brand (coming soon)
3. Entering the U.S. Market? How Foreign Companies Can Clear Unused Registrations Blocking Their Trademark (coming soon)
4. A Blocking Registration in Your Clearance Search? Using Expungement and Reexamination Before a Launch, Rebrand, or Product Expansion (coming soon)
5. Received an Expungement or Reexamination Notice? How to Defend Your Trademark Registration in Three Months (coming soon)

This post provides general information, not legal advice and does not create an attorney-client relationship. Fees, deadlines, and procedures are current as of the date of publication and may change.