For registrations issuing from intent-to-use applications under Section 1(b), a reexamination proceeding determines whether the evidence shows that the registered mark was in use in commerce as of the deadline for filing a statement of use, including any approved extensions. See In re Everwise Credit Union, No. 2023- 100533R, 2026 TTAB LEXIS 118, at *4; Common Sense Press Inc. v. Van Sciver, No. 92075375, 2023 TTAB LEXIS 173, at *5. 

Once a reexamination proceeding is instituted and an initial Office action issued, a registrant who does not wish to delete the affected goods or services is required “to provide such evidence of use, information, exhibits, affidavits, or declarations as may be reasonably necessary to rebut the prima facie case of nonuse by establishing that the required use in commerce has been made on or in connection with the goods and/or services at issue as of the date relevant to the proceeding.” 37 C.F.R. 2.93(a).

“A registrant's documentary evidence of use shall be consistent with when a mark shall be deemed to be in use in commerce under the definition of 'use in commerce' in section 1127 ... .” 15 U.S.C. § 1066b(f); see also 37 C.F.R. § 2.93(b)(7). Under the definitional provision of the Trademark Act, “[t]he term 'use in commerce' means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark.” 15 U.S.C. § 1127.

The TTAB recently affirmed a reexamination canceling the registered BAIA & Design mark for “Boats; Ships; Yachts” because the registrant failed to demonstrate use of the mark in commerce by the critical date (namely, the last date for filing the statement of use). In re Hanako design SA, Reexamination No. 2024-101552R for Reg. No. 7220244 (TTAB Jun. 10, 2026). 

Registrant Hanko had not sold any goods under the BAIA & Design mark, but argued that it succeeded to rights in the mark tracing back to the owner of a prior (now cancelled) BAIA registration issued in 2001. The TTAB rejected this argument because there were several missing links in the chain of title. First, there was no assignment of record from the prior registrant to "Baia of America," a purported successor in the chain. Second, there was no authentication of a 2007 promissory note by Baia of America to "Italproperties," yet another subsequent successor in the chain, or clear identification of the 2001 registration in that promissory note. Third, there was no evidence of default on the promissory note. Fourth, a 2020 document by Italproperties that purported to sell the company to Registrant Hanko did not identify any trademarks. Moreover, because the earlier registration had been cancelled in 2012, any rights would have to have been based on common law use, and there was no evidence of any such use between 2012 and 2020. 

Although lacking evidence that it or its purported predecessors-in-interest had used the registered mark, Registrant Hanko argued there was residual goodwill because there were “multiple active U.S. listings for BAIA yachts” that “advertise the yachts for purchase” such that this “secondary market” preserved “trademark significance” and “demonstrates that the … Mark remains visible to consumers and retains its goodwill.” 

     We reject Registrant's argument. While evidence of residual goodwill can serve to negate a charge of abandonment based on a mark having become the generic name for the goods, see Adamson Sys. Eng'g, Inc. v. Peavey Elecs. Corp., No. 92076586, 2023 TTAB LEXIS 454, at *18, the problem here is different: Registrant's nonuse (and the lack of evidence that Registrant's alleged predecessor-in-interest, Italproperties, ever used the mark). Alleged residual goodwill does not defeat nonuse. See, e.g., id. at *43- 44; see also Azeka Bldg. Corp. v. Azeka, No. 91218679, 2017 TTAB LEXIS 123, at *29- 32; Gen. Motors Corp. v. Aristide & Co., No. 91167007, 2008 TTAB LEXIS 18, at *14- 15 (TTAB 2008). Nonuse remains nonuse.

Thus, the TTAB affirmed that, because the registrant failed to demonstrate use of the mark in commerce by the relevant date, the registration will be cancelled in due course under Section 16B(g) of the Trademark Act, 15 U.S.C. § 1066b(g).

In discussing this case, the TTABlog cited Gilson and LaLonde's The Zombie Trademark: A Windfall and A Pitfall, 98 TMR 1280 (November - December 2008) for its discussion about the significance of residual goodwill.