Under Section 14(3) of the Trademark Act, 15 U.S.C. § 1064(3), a petition to cancel a trademark registration may be based on the registered mark having been abandoned. “There are two elements to a claim for abandonment: (1) nonuse; and (2) intent not to resume use.” Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 1360 (Fed. Cir. 2022). 

There is a presumption of abandonment where the mark has not been used with the registered goods or services for three (3) consecutive years. 15 U.S.C. § 1127; see also On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1087 (Fed. Cir. 2000) (the statute “create[s] a rebuttable presumption that the trademark owner has abandoned the mark without intent to resume use. The burden then shifts to the trademark owner to produce evidence that he either used the mark during the statutory period or intended to resume use.”) (citations omitted). “Use” of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark. 15 U.S.C. § 1127. 

In Adamson Sys. Eng'g, Inc. v. Peavey Elecs. Corp., No. 92076586, 2023 WL 7274674, at *14 (TTAB 2023), spreadsheets of domestic sales of three CS amplifiers in 2016 and 2017; but none in 2018, 2019, or 2020; and one sold in 2021; fell short of the statutory standard of “bona fide use made in the ordinary course of trade” for the CS mark with amplifiers. Moreover, their product catalogs stopped listing CS amplifiers after 2013; a customer service representative recommended another brand of amplifiers because the respondent was “possibly out of stock”; and their website, in February 2021, “stated that its CS amplifiers were no longer available, and urged customers to ‘check out' other products.” 

In Henri Selmer Paris, S.A.S. v. Karel Goetghebeur, Cancellation No. 92074077 (TTAB Sept. 3, 2026), there were four saxaphone sales during a five-year span, which was on par with the sales numbers in Adamson, but there were "a few key differences." 

First, unlike in Adamson, there were invoices of U.S. saxophone sales with the trademark at issue, rather than just spreadsheets of sales.

Second, in Adamson, there was evidence that the respondent stopped advertising the amplifiers with the mark, had a representative recommend another brand because the amplifiers with the mark were out of stock, and stated on its website that the amplifiers with the mark were no longer available.

And third, Mr. Goetghebeur is an individual, as opposed to a sizeable company.

What is “the ordinary course of trade” for a sizeable company is unlikely to be the same for an individual. 

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[W]hile the numbers are low, there's nothing that would show that Respondent's U.S. sales were stopped or were purposefully being “drawn-down.”

In summary, the total of four sales were for one saxophone in 2016 or 2017 (that invoice spans the end of the year into the new year), another in 2017, one in 2018, and one in 2019; so there was no three-year consecutive period of nonuse in that roughly four-and-a-half-year period. And the TTAB found that those four sales were not shown to be not bona fide.  

“Intermittent periods of nonuse or low-level use do not result in abandonment if the business is more or less continuous.” 2 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 17:14 (5th ed.) (June 2026 update); see also Person's Co. v. Christman, 900 F.2d 1565, 1571 (Fed. Cir. 1990) (“Although sales … were often intermittent and the inventory … remained small, such circumstances do not necessarily imply abandonment. There is also no rule of law that the owner of a trademark must reach a particular level of success, measured either by the size of the market or by its own level of sales, to avoid abandoning a mark.”) (citation omitted)); Tiger Lily, 35 F.4th at 1360 (“even limited use can be sufficient to avoid a finding [nonuse] of a mark”). 

Finding that the statute's presumption of abandonment did not apply, and that there was no showing of the second element of abandonment (intent not to resume use) because the petitioner had put "all its eggs in the 'presumption' basket"; the TTAB denied the petition for cancellation because there was no abandonment without the benefit of that presumption.