In the world of trademark disputes, a claim of abandonment can be a powerful weapon. When used correctly, it can cancel an existing registration, clear the way for a new application, or eliminate a marketplace competitor’s presumptive rights. But before you move forward with an abandonment claim, you need to understand what the Trademark Trial and Appeal Board (TTAB) actually requires—and what it will ignore.

Too many litigants assume that alleging abandonment is enough. It’s not. The TTAB Tips repeatedly emphasize that abandonment is one of the most evidence-sensitive claims in Board practice. The bar is high, the burden is on the challenger, and assumptions based on marketplace visibility rarely cut it.

If you’re preparing a petition to cancel a registration on the ground of abandonment, you’ll need more than just anecdotal evidence or business speculation. The TTAB demands a well-supported factual showing, grounded in the law and delivered within its unique procedural framework.

What Is Trademark Abandonment?

Under Section 45 of the Lanham Act, a mark is considered abandoned when its use has been discontinued with intent not to resume. Nonuse for three consecutive years creates a rebuttable presumption of abandonment. But even with that presumption, the challenger still carries the burden of persuasion.

There are two critical elements: nonuse and intent not to resume use. The first is often easier to prove. The second is where many cases fall apart.

Nonuse: More Than Just Visibility

To establish nonuse, you need to show that the registrant has not used the mark in commerce for at least three consecutive years. Importantly, this must be a complete cessation of use, not just reduced use, sporadic marketing, or minimal online presence.

The TTAB does not rely on visibility in the marketplace alone. Just because a product hasn’t appeared on Amazon or a service hasn’t been promoted on Instagram doesn’t mean the registrant has abandoned the mark. The Board expects evidence of actual, commercial use—or the lack thereof.

What qualifies as proof of nonuse? Common sources include interrogatory responses admitting nonuse, deposition testimony, absence of sales or advertising records, and the lack of specimens in renewal filings. The key is to create a comprehensive record that points to a complete absence of commercial activity.

Intent Not to Resume Use: The Silent Killer of Abandonment Claims

Even if you establish nonuse, the registrant can still defeat your claim by showing intent to resume use. This is often where abandonment claims fail. The TTAB gives significant weight to any documented intention to continue using the mark.

Intent can be shown through planned marketing, prototype development, investor outreach, or internal business strategy documents. On the flip side, the absence of such evidence can support an abandonment claim—but only when nonuse is clear and sustained.

Speculative or presumed intent won’t cut it. The TTAB looks for objective evidence of intent. If the registrant can point to ongoing efforts, pending product development, or even emails discussing future plans, your claim may not survive—even after three years of nonuse.

The Rebuttable Presumption—and Its Limits

Once you establish three years of nonuse, the burden shifts to the registrant to rebut the presumption. But that doesn’t mean you’ve won. If the registrant introduces any credible evidence of intent to resume use, the presumption is overcome, and you must prove abandonment by a preponderance of the evidence.

In practical terms, that means challengers should not rely solely on the statutory presumption. It’s a helpful tool, but not a guarantee. Your evidence needs to be strong enough to overcome a registrant’s rebuttal and convince the Board that the mark truly has been abandoned in both practice and intent.

Procedural Precision: How to Get Your Evidence In

One of the most common reasons abandonment claims fail at the TTAB is not lack of substance—but procedural missteps. According to several TTAB Tips, challengers often forget to properly make their evidence part of the record.

Documents pulled from the internet, USPTO databases, or internal files must be introduced through appropriate channels. That means serving interrogatories, requesting admissions, conducting depositions, and submitting evidence through notices of reliance or stipulated agreements. Simply attaching materials to a brief is not enough.

Additionally, discovery must be timely, and trial testimony periods must be respected. If you miss your chance to introduce key evidence, the TTAB will not consider it—even if it’s compelling.

Strategic Timing and Standing

When filing a petition to cancel based on abandonment, it’s also essential to consider timing and standing. You must have a real interest in the outcome of the proceeding and a reasonable belief of harm. That typically means you have a pending application that was refused due to the challenged mark, or you are preparing to enter the market with a conflicting name.

Timing also plays a role in when the abandonment occurred. If the registrant abandoned the mark and then later resumed use, the original registration may still be valid. Partial abandonment (such as nonuse for some goods) is also a possible claim, but it must be clearly pled and supported by targeted evidence.

Common Pitfalls—and How to Avoid Them

One common mistake is assuming that abandonment can be inferred from inactivity on social media or the absence of advertising. The TTAB has repeatedly held that such assumptions are insufficient. Commercial use may still be occurring out of public view—especially in B2B industries or niche markets.

Another trap is failing to account for excusable nonuse. The registrant may assert that outside factors—such as a supply chain disruption, economic downturn, or legal injunction—temporarily halted use of the mark. If the TTAB finds that the nonuse was beyond the registrant’s control and that there was intent to resume, the abandonment claim may fail.

To avoid these pitfalls, practitioners must conduct thorough discovery, avoid reliance on assumptions, and meticulously document the registrant’s actions—or inactions—over time.

Final Thoughts: Know What the TTAB Actually Needs

The Trademark Trial and Appeal Board has a clear and demanding standard for proving abandonment. As repeated in the TTAB Tips, success requires more than accusations or market speculation. It requires well-documented, carefully introduced evidence of both nonuse and lack of intent to resume.

If you’re preparing to challenge a registration on this ground, treat it as a serious litigation effort. Gather evidence through formal discovery. Substantiate each element of the claim. Confirm that your evidence is properly introduced into the record. And don’t underestimate the registrant’s ability to offer a plausible rebuttal.

With a strong record, strategic precision, and a deep understanding of the TTAB’s expectations, your abandonment claim can rise above presumption—and become a winning argument.