What can I do if I did not submit the Statement of Use to the USPTO and application is dead?

If your registration application is now abandoned, you likely will have to refile a new registration application; however, sense you do now have your Statement of Use, you can likely file under section 1(a) "use in commerce" as opposed to intent to use under section 1(b). I do not belief you can successfully petition to revive the abandoned registration application. Perhaps some of the other trademark attorneys who monitor these postings will have some other suggestions. Good luck.

When your application went abandoned, you should have received a postcard from the Trademark Office called a NOTICE OF ABANDONMENT. Look at the date that postcard was sent: You can revive your application if you file a petition to reinstate it AND pay the missed extension fees WITHIN 2 MONTHS OF THE MAILING DATE of the Notice of Abandonment. However, if it has already been over the 2 month period OR if you have already passed 3 years since a Notice of Allowance issued, then you will not be able to reinstate your mark. You least expensive alternative may well be simply to file a new application, but whether or not the priority date is important enough to go through reviving the abandoned mark is something only you and/or your attorney can determine.

As mentioned, you may have a two-month window from when the Statement of Use/Extension was due to have the trademark reinstated. If this is applicable to you will require more information. You may wish to contact a trademark attorney to sort out this mark and/or get you started on a clean slate for a re-file.

There are a few ways to revive a mark without going through a new application. If your mark was recently marked as abandoned, you will have to file the petition to revive fairly soon. I always suggest using a trademark attorney when it comes to dealing with federal marks.

Since tm/sm priority derives from either use or from filing a US tm/sm appl. you, with an attorney's help, first need to decide if the priority is all that important. Likely it isn't. If it isn't, just have your attorney refile and this time let your attorney do it claiming actual use. If your attorney does that properly, no later Decl. of Use will be needed. That will be cheaper than petitioning to revive and filing the Declaration of Use and likely just as legally effective for you and it leaves a cleaner file history. When your attorney refiles based on use, you ARE submitting the statement of use, but doing it as part of the application rather than later. And you did not mention any clearance search. If you also blew that part of the process, have your attorney do one and advise you if you need to change marks. A word of wisdom, don't be your own attorney. Hopefully you learned the lesson from this that screw ups like "I lost my calendar" or "I completely forgot" tend to happen to pro se applicants with alarming frequency.

The short answer to your question is that unless you absolutely need the priority date you had before you should just start over and file for a mark on the basis of actual use now that you have prepared a statement of use, assuming your specimen of use is acceptable to trademark examining attorney. Now for the rest of the story..... Trademark registration with USPTO is one of the seemingly simple things that most clients think is just "check the box" and voila, out pops a trademark!! Wow, What potential danger lurks around almost every corner in the process and the reason why you really need to seek the services of a qualified intellectual property lawyer, especially one that handles trademark matters on a regular basis. For example, did you know as Attorney Burdick mentioned that you need a "clearance search" for your potential mark?? Also, most of the "do-it-yourself" services out there for trademarks will simply file a mark after you have conducted a search to determine if there are no "identical" marks that conflict with your mark. However, that is not it. An attorney will search for any potential marks that might be confusingly similar to your proposed mark. Did you know that if you get this part wrong you could potentially get sued in federal court for trademark infringement? I highly recommend that you not cut corners on these issues. It seems simple enough to use the online tool for tm registration but you really need the guidance of an attorney and not just some company selling forms and help yourself services. Buyer Beware. Only you and your attorney can know whether a date of priority is important to you. Your attorney can guide you on whether your specimen of use will be acceptable for the classes and list of goods/services you will be selling in commerce. Good luck!