82_FR_29525 82 FR 29401 - Revival of Abandoned Applications, Reinstatement of Abandoned Applications and Cancelled or Expired Registrations, and Petitions to the Director

82 FR 29401 - Revival of Abandoned Applications, Reinstatement of Abandoned Applications and Cancelled or Expired Registrations, and Petitions to the Director

DEPARTMENT OF COMMERCE
Patent and Trademark Office

Federal Register Volume 82, Issue 124 (June 29, 2017)

Page Range29401-29409
FR Document2017-13519

The United States Patent and Trademark Office (Office or USPTO) amends its rules regarding petitions to revive an abandoned trademark application and petitions to the Director of the USPTO (Director) regarding other trademark matters and to codify USPTO practice regarding requests for reinstatement of abandoned trademark applications and cancelled or expired trademark registrations. The changes will permit the USPTO to provide more detailed procedures regarding the deadlines and requirements for requesting revival, reinstatement, or other action by the Director. These rules will thereby ensure that the public has notice of the deadlines and requirements for making such requests, facilitate the efficient and consistent processing of such requests, and promote the integrity of application/registration information in the trademark electronic records system as an accurate reflection of the status of applications and registrations.

Federal Register, Volume 82 Issue 124 (Thursday, June 29, 2017)
[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)]
[Rules and Regulations]
[Pages 29401-29409]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-13519]


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DEPARTMENT OF COMMERCE

 Patent and Trademark Office

37 CFR Part 2

[Docket No. PTO-T-2010-0016]
RIN 0651-AC41


Revival of Abandoned Applications, Reinstatement of Abandoned 
Applications and Cancelled or Expired Registrations, and Petitions to 
the Director

AGENCY: United States Patent and Trademark Office, Commerce.

ACTION: Final rule.

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SUMMARY: The United States Patent and Trademark Office (Office or 
USPTO) amends its rules regarding petitions to revive an abandoned 
trademark application and petitions to the Director of the USPTO 
(Director) regarding other trademark matters and to codify USPTO 
practice regarding requests for reinstatement of abandoned trademark 
applications and cancelled or expired trademark registrations. The 
changes will permit the USPTO to provide more detailed procedures 
regarding the deadlines and requirements for requesting revival, 
reinstatement, or other action by the Director. These rules will 
thereby ensure that the public has notice of the deadlines and 
requirements for making such requests, facilitate the efficient and 
consistent processing of such requests, and promote the integrity of 
application/registration information in the trademark electronic 
records system as an accurate reflection of the status of applications 
and registrations.

DATES: This rule is effective on July 8, 2017.

FOR FURTHER INFORMATION CONTACT: Catherine Cain, Office of the Deputy 
Commissioner for Trademarks Examination Policy, by email at 
TMFRNotices@uspto.gov or by telephone at (571) 272-8946.

SUPPLEMENTARY INFORMATION: 
    Purpose: The USPTO revises the rules in part 2 of title 37 of the 
Code of Federal Regulations to provide more detailed procedures 
regarding the deadlines and requirements for petitions to revive an 
abandoned trademark application under 37 CFR 2.66 and petitions to the 
Director under 37 CFR 2.146. The changes also codify USPTO practice 
regarding requests for reinstatement of trademark applications that 
were abandoned and trademark registrations that were cancelled or 
expired, due to Office error. By providing more detailed procedures 
regarding requesting revival, reinstatement, or other action by the 
Director, the rulemaking benefits applicants, registrants, and the 
public because it: (1) Promotes the integrity of application/
registration information in the trademark electronic records system as 
an accurate reflection of the status of live applications and 
registrations; (2) clarifies the time periods in which applications or 
registrations can be revived or reinstated after abandonment or 
cancellation and specifies the related filing requirements; (3) 
clarifies the deadline for requesting that the Director take action 
regarding other matters; and (4) facilitates the efficient and 
consistent handling of such requests.
    The public relies on the trademark electronic records system to 
determine whether a chosen mark is available for use or registration. 
Applicants are encouraged to utilize the trademark electronic search 
system, which provides access to text and images of marks, to determine 
whether a mark in any pending application or current registration is 
similar to their mark and used on the same or related products or for 
the same or related services. The search system also indicates the 
status of an application or registration, that is, whether the 
application or registration is live or dead. A ``live'' status 
indicates the application or registration is active and may bar the 
registration of a similar mark in a new application. A ``dead'' status 
indicates the application has become abandoned or the registration is 
cancelled or expired and does not serve as a bar to registration of a 
similar mark in a new application unless it is restored to a live 
status pursuant to a corresponding rule.
    When a party's search discloses a potentially confusingly similar 
mark, that party may incur a variety of resulting costs and burdens, 
such as those associated with investigating the actual use of the 
disclosed mark to assess any conflict, proceedings to oppose the 
application or cancel the registration or of the disclosed mark, civil 
litigation to resolve a dispute over the mark, or changing plans to 
avoid use of the party's chosen mark. In order to determine whether to 
undertake one or more of these actions, the party would refer to the 
status of the conflicting application/registration and would need to 
consult the relevant rule to determine whether the application or 
registration is within the time period in which the applicant or 
registrant may request revival, reinstatement, or other action by the 
Director. Thus, the effective notice provided by the USPTO's records 
plays a critical role in a party's decision-making by enabling the 
party to clearly distinguish between the dead marks that are no longer 
candidates for, or protected by, a federal registration and those that 
are still able to be restored to active status.
    If the trademark electronic records system indicates that an 
application or registration is dead because it is abandoned, cancelled, 
or expired, and there is any doubt as to whether the application or 
registration might be eligible for revival, reinstatement, or other 
action by the Director, the costs and burdens discussed above may be 
incurred unnecessarily. By providing more detailed procedures as to the 
deadlines and requirements for requesting revival, reinstatement, or 
other action by the Director, these rules will help the public avoid 
such needless costs and burdens and promote the efficient and 
consistent processing of such requests by the Office.

Background

    Petition To Revive: The statutory period for responding to an 
examining attorney's Office action is six months from the Office 
action's date of issuance. 15 U.S.C. 1062(b); 37 CFR 2.62(a). If no 
response is received by the USPTO within the statutory period, and the 
Office action was sent to the correspondence address in the USPTO's 
records, the application is then abandoned in full or in part, as 
appropriate. 37 CFR 2.65(a); Trademark Manual of Examining Procedure 
(TMEP) Sec.  718.06.
    The statutory period for filing a statement of use or a request for 
an extension of time to file a statement of use, in response to a 
notice of allowance issued under section 13(b)(2) of the Trademark Act 
(Act), is also six months. 15 U.S.C. 1051(d)(1), (2); 37 CFR 2.88(a), 
2.89(a). Thus, an application is abandoned if the applicant fails to 
file a statement of use or request for an extension of time to file a 
statement of use within the statutory period or within a previously 
granted extension period. 37 CFR 2.65(c), 2.88(k); TMEP Sec.  718.04.
    An application is considered to be abandoned as of the day after 
the date

[[Page 29402]]

on which a response to an Office action or notice of allowance is due. 
TMEP Sec.  718.06. However, to accommodate timely mailed paper 
submissions and to ensure that the required response was not received 
and placed in the record of another application (e.g., if the applicant 
enters the incorrect serial number on its response), the USPTO 
generally waits one month after the due date to update the trademark 
electronic records system to reflect the abandonment. When the 
trademark electronic records system is updated, the USPTO sends a 
computer-generated notice of abandonment to the correspondence address 
listed in the application. Id. If an application becomes abandoned for 
failure to respond to an Office action or notice of allowance within 
the statutory period, and the delay in responding was unintentional, 
the application may be revived upon proper submission of a petition 
under 37 CFR 2.66. Prior to this final rule, the deadlines for filing 
the petition were within two months after the date of issuance of the 
notice of abandonment or within two months of actual knowledge of the 
abandonment, if the applicant did not receive the notice of abandonment 
and the applicant was diligent in checking the status of the 
application every six months.
    Request for Reinstatement: If an applicant has proof that an 
application was inadvertently abandoned due to a USPTO error, an 
applicant may file a request to reinstate the application, instead of a 
petition to revive. TMEP Sec.  1712.01. Prior to this final rule, an 
applicant was required to file a request for reinstatement within two 
months of the issuance date of the notice of abandonment. Id. If the 
applicant asserted that it did not receive a notice of abandonment, the 
applicant was required to file the request within two months of the 
date the applicant had actual knowledge that the application was 
abandoned, and the applicant must have been duly diligent in monitoring 
the status of the application every six months. Id.
    Similarly, a registrant could file a request to reinstate a 
cancelled or expired registration if the registrant had proof that a 
required document was timely filed and that USPTO error caused the 
registration to be cancelled or expired. TMEP Sec.  1712.02. Prior to 
implementation of this rule, there was no deadline for filing a request 
to reinstate a cancelled/expired registration, and the USPTO generally 
did not invoke the requirement for due diligence when there was proof 
that a registration was cancelled or expired solely due to USPTO error. 
TMEP Sec.  1712.02(a).
    Petition to the Director Under 37 CFR 2.146: Applicants, 
registrants, and parties to inter partes proceedings before the 
Trademark Trial and Appeal Board (TTAB) who believe they have been 
injured by certain adverse actions of the USPTO, or who believe that 
they cannot comply with the requirements of the Trademark Rules of 
Practice (37 CFR parts 2, 3, 6, and 7) because of an extraordinary 
situation, may seek equitable relief by filing a petition under 37 CFR 
2.146. A variety of issues may be reviewed on petition under this 
section. See TMEP Sec.  1703. Generally, unless a specific deadline is 
specified elsewhere in the rules or within this section, such as the 
deadlines for petitions regarding actions of the TTAB under Sec.  
2.146(e), a petition must be filed within two months of the date of 
issuance of the action from which relief is requested and, prior to 
this final rule, no later than two months from the date when Office 
records were updated to show that a registration was cancelled or 
expired under Sec.  2.146(d). If a petitioner sought to reactivate an 
application or registration that was abandoned, cancelled, or expired 
because documents not received by the Office were lost or mishandled, 
the petitioner was also required to be duly diligent in checking the 
status of the application or registration. The section was 
traditionally invoked when papers submitted pursuant to the mailing 
rules in Sec.  2.197 and Sec.  2.198 were lost. However, the occurrence 
of such incidents is minimal. Further, the USPTO believes that if an 
applicant or registrant has proof that documents mailed in accordance 
with the requirements of Sec.  2.197 or Sec.  2.198 were lost or 
mishandled by the USPTO, thereby causing the abandonment of an 
application or cancellation/expiration of a registration, the proper 
recourse is to seek relief under new Sec.  2.64 for requesting 
reinstatement.
    Due-Diligence Requirement: The USPTO generally processes 
applications, responses, and other documents in the order in which they 
are received, and it is reasonable to expect some notice or 
acknowledgement from the USPTO regarding action on a pending matter 
within six months of the filing or receipt of a document. If an 
applicant or registrant does not receive a notice from the USPTO 
regarding the abandonment of its application, cancellation/expiration 
of its registration, or denial of some other request, but otherwise 
learns of the abandonment, cancellation/expiration, or denial, the 
applicant or registrant must have been duly diligent in tracking the 
status of its application or registration in order to be granted 
revival, reinstatement, or other action by the Director. Being duly 
diligent means that a party who has not received a notice or 
acknowledgement from the USPTO within six months of the filing has the 
burden of inquiring as to the status of action on its filing and 
requesting in writing that corrective action be taken when necessary, 
to protect third parties who may be harmed by reliance on inaccurate 
information regarding the status of an application or registration in 
the trademark electronic records system. See TMEP Sec.  1705.05. For 
example, a third party may have searched USPTO records and begun using 
a mark because the search showed that an earlier-filed application or 
prior registration for a conflicting mark had been abandoned or 
cancelled. In other cases, an examining attorney may have searched 
USPTO records and approved for publication a later-filed application 
for a conflicting mark because the earlier-filed application was shown 
as abandoned or a prior registration was shown as cancelled.
    When a party seeks to revive an application that was abandoned or 
reinstate a registration that was cancelled or expired, due either to 
the failure of the applicant or registrant to file a required document 
or to the loss or mishandling of documents sent to or from the USPTO, 
or asks the Director to take some other action, the USPTO may deny the 
request if the petitioner was not diligent in checking the status of 
the application or registration, even if the petitioner shows that the 
USPTO actually received documents or declares that a notice from the 
USPTO was never received by the petitioner.
    The due-diligence requirement means that any petition filed more 
than two months after the notice of abandonment or cancellation was 
issued or more than two months after Office records are updated is 
likely to be dismissed as untimely because the applicant or registrant 
will be unable to establish that it was duly diligent. For example, if 
an applicant files an application in July 1, 2016, and an Office action 
is issued on October 15, 2016, a response must be filed on or before 
April 15, 2017. If the applicant does not respond, the trademark 
electronic records system will be updated to show the application as 
abandoned and a notice of abandonment will be sent to the applicant on 
or about May 15, 2017. If the applicant does not receive the notice of 
abandonment, only checks the trademark electronic records system in

[[Page 29403]]

August 2017 (i.e., more than two months after the issue date of the 
notice of abandonment and more than a year after filing), and 
thereafter files a petition to revive, that petition would be denied as 
untimely. Even if the applicant asserts that it only became aware of 
the issuance of the Office action and the notice of abandonment on, for 
example, July 18, 2017 (actual notice), the petition would be denied as 
untimely because the applicant could not prove that it was duly 
diligent in monitoring the status of the application by checking the 
status every six months.
    Moreover, in some situations when an applicant or owner of a 
registration asserts that it did not receive a notice of abandonment or 
cancellation, it is often difficult for the USPTO to determine when the 
party had actual notice of the abandonment/cancellation and whether the 
party was duly diligent in prosecuting the application or maintaining 
the registration. By effectively making applicants and registrants more 
clearly aware of the requirement to conduct the requisite status checks 
of Office records every six months from the filing of a document, 
whether an application or a submission requesting action by the Office, 
parties would have sufficient notice to timely respond to any issues 
regarding the acceptance or refusal of their submission in the vast 
majority of circumstances. For example, if a document is filed on 
January 2 and an Office action requiring a response within six months 
is issued on February 2, and if the submitting party is duly diligent 
and reviews the trademark electronic records system on July 2, it would 
learn of the issuance of the action, even if the party did not receive 
it. In that situation, the party would still have one month in which to 
respond timely.

Discussion of Changes and Rulemaking Goals

    Establish Certainty Regarding Timeliness: The goals of the changes 
implemented herein are to harmonize the deadlines for requesting 
revival, reinstatement, or other action by the Director and remove any 
uncertainty for applicants, registrants, third parties, and the Office 
as to whether a request is timely.
    In this rulemaking, the USPTO adds Sec. Sec.  2.64(a)(1)(i) and 
(b)(1)(i) and amends Sec. Sec.  2.66(a)(1) and 2.146(d)(1) to clarify 
that applicants and registrants who receive an official document from 
the USPTO, such as a notice of abandonment or cancellation or a denial 
of certification of an international registration, must file a petition 
to revive, request for reinstatement, or petition to the Director to 
take another action, by not later than two months after the issue date 
of the notice. The addition of Sec. Sec.  2.64(a)(1)(i) and (b)(1)(i) 
codifies this deadline for parties seeking reinstatement of an 
application or registration abandoned or cancelled due to Office error 
and makes it consistent with the deadline in Sec.  2.66(a)(1). The 
amendment to Sec.  2.66(a) clarifies that the deadline applies to 
abandonments in full or in part. Finally, the change to Sec.  2.146(d) 
deletes the requirement that a petition be filed no later than two 
months from the date when Office records are updated to show that a 
registration is cancelled or expired. As noted below, this deadline is 
extended to not later than six months after the date the trademark 
electronic records system indicates that the registration is cancelled/
expired, when the registrant declares that it did not receive the 
action or where no action was issued, to harmonize the deadlines across 
the relevant sections.
    To establish certainty and ensure consistency, the rule also adds 
Sec. Sec.  2.64(a)(1)(ii) and (b)(1)(ii) to codify the deadline for all 
applicants and registrants who assert that they did not receive a 
notice of abandonment or cancellation/expiration from the Office and 
thereafter seek reinstatement. This deadline is identical to the 
deadlines implemented in Sec. Sec.  2.66(a)(2) and 2.146(d)(2) for 
applicants and registrants who assert that they did not receive a 
notice from the Office and thereafter seek relief. Under Sec. Sec.  
2.64(a)(1)(ii) and (b)(1)(ii), if the applicant or registrant did not 
receive the notice, or no notice was issued, a petition must be filed 
by not later than two months of actual knowledge that a notice was 
issued or that an action was taken by the Office and not later than six 
months after the date the trademark electronic records system is 
updated to indicate the action taken by the Office. Thus, the rule 
makes clear that applicants and registrants must check the status of 
their applications and registrations every six months after the filing 
of an application or other document and thereby removes any uncertainty 
in the Office's assessment of whether an applicant or registrant was 
duly diligent.
    Balance Duties of the USPTO to Registrants and Third Parties: Under 
this rule, the USPTO adds Sec.  2.64(b)(1)(ii) and Sec.  
2.146(d)(2)(ii) to include the requirement for due diligence in 
tracking the status of a registration after the timely filing of an 
affidavit of use or excusable non-use under section 8 or 71 of the Act 
or a renewal application under section 9 of the Act. Registrants who 
have timely filed such documents and who seek reinstatement of a 
registration cancelled due to Office error, but who assert that they 
did not receive a notice of cancellation/expiration, or where no notice 
was issued, must file the request by not later than two months of 
actual knowledge of the cancellation and not later than six months 
after the date the trademark electronic records system indicates that 
the registration is cancelled/expired.
    As noted above, the USPTO has generally not invoked the requirement 
for due diligence when there is proof that a registration was cancelled 
or expired solely due to Office error. Although the USPTO has a duty to 
correct its errors, the USPTO has a concurrent duty toward third 
parties to ensure that the trademark electronic records system 
accurately reflects the status of applications and registrations, 
especially given that the USPTO encourages such third parties to search 
the trademark electronic records system prior to adopting or seeking to 
register a mark. Therefore, the USPTO must balance its duties to third 
parties who rely on the accuracy of the trademark electronic records 
system and to registrants whose registration may have been cancelled as 
a result of Office error. The USPTO believes that, in order to fulfill 
its duties to all parties, the requirement for due diligence should 
apply equally to registrants who timely filed an affidavit of use or 
excusable non-use under section 8 or 71 of the Act or a renewal 
application under section 9 of the Act, but did not receive a notice of 
cancellation/expiration, and who then request reinstatement of their 
registrations, as it does to all other applicants and registrants who 
do not receive notice of any other action taken by the Office. As noted 
above, it is reasonable to expect some notice or acknowledgement from 
the USPTO regarding action on a pending matter within six months of the 
filing of a document. A registrant who has timely filed a maintenance 
or renewal document, but has not received notification from the USPTO 
regarding the acceptance or refusal of the document within that time 
frame, has the burden of inquiring as to the status of the USPTO's 
action on the filing and requesting in writing that corrective action 
be taken when necessary, to protect third parties who may be harmed by 
reliance on inaccurate information regarding the status of its 
registration in the trademark electronic records system.
    Maintain Pendency: The USPTO herein changes Sec.  2.66 to prevent

[[Page 29404]]

applicants from utilizing the revival process to delay prosecution by 
repeatedly asserting non-receipt of an Office action or notice of 
allowance. Specifically, the regulations at Sec.  2.66(b) are amended 
to clarify that a response to the outstanding Office action is required 
or, if the applicant asserts that the unintentional delay is based on 
non-receipt of an Office action or notification, the applicant may not 
assert non-receipt of the same Office action or notification in a 
subsequent petition. The USPTO also adds Sec.  2.66(b)(3)(i)-(ii) to 
clarify the requirements for requesting revival when the abandonment 
occurred after a final Office action. The regulations at Sec.  2.66(c) 
are amended to clarify that if the applicant asserts that the 
unintentional delay is based on non-receipt of a notice of allowance, 
the applicant may not assert non-receipt of the notice of allowance in 
a subsequent petition.
    In some situations, an application will become abandoned multiple 
times for failure to respond to an Office action or notice of 
allowance, and the applicant will assert that it did not receive the 
same Office action or the notice of allowance each time that it 
petitions to revive the application. Under the regulations implemented 
herein at Sec.  2.66(b)(3) and Sec.  2.66(c)(2)(iii), the Office limits 
the applicant's ability to assert more than once that the unintentional 
delay is based on non-receipt of the same Office action or the notice 
of allowance. When an applicant becomes aware that its application has 
been abandoned, either via receipt of a notice of abandonment or after 
checking the status of the application, the applicant is thereby on 
notice that the Office has taken action on the application. If the 
applicant then files a petition to revive an application held abandoned 
for failure to respond to an Office action, which states that the 
applicant did not receive the action, and the petition is granted, the 
USPTO will issue a new Office action, if there are additional issues 
that need to be raised since the original Office action was sent, and 
provide the applicant with a new six-month response period. If all 
issues previously raised remain the same, after reviving the 
application, the USPTO will send a notice to the applicant directing 
the applicant to view the previously issued Office action in the 
electronic file for the application available on the USPTO's Web site 
and provide the applicant with a new six-month response period. When a 
petition to revive an application for failure to respond to a notice of 
allowance states that the applicant did not receive the notice, and the 
petition is granted, the USPTO will cancel the original notice of 
allowance and issue a new notice, giving the applicant a new six-month 
period in which to file a statement of use or request for extension of 
time to file a statement of use.
    In either situation, the USPTO sends the new Office action (or 
notice directing the applicant to view the previously issued Office 
action in the electronic file) or notice of allowance to the 
correspondence address of record. In general, under the current 
regulations at 37 CFR 2.18, the owner of an application has a duty to 
maintain a current and accurate correspondence address with the USPTO, 
which may be either a physical or email address. If the correspondence 
address changes, the USPTO must be promptly notified in writing of the 
new address. If the correspondence address has not changed in the USPTO 
records since the filing of the application, the applicant is on notice 
that documents regarding its application are being sent to that address 
by virtue of its awareness of the abandonment of the application and 
its subsequent filing of the petition to revive.
    Allowing an applicant who is on notice that the Office has taken 
action in an application to continually assert non-receipt of the same 
Office action or notice of allowance significantly delays prosecution 
of the application. It also results in uncertainty for the public, 
which relies on the trademark electronic records system to determine 
whether a chosen mark is available for use or registration. Therefore, 
because the applicant is on notice that documents regarding its 
application are being sent to the address of record, this final rule 
limits an applicant to asserting only once that the unintentional delay 
is based on non-receipt of the same Office action or notice of 
allowance. If the correspondence address has changed since the filing 
of the application, the applicant is responsible for updating the 
address, as noted above, so that any further Office actions or notices 
will be sent to the correct address.
    Codify Requirements for Reinstatement: The USPTO hereby implements 
a new regulation at Sec.  2.64 to codify the requirements for seeking 
reinstatement of an application that was abandoned or a registration 
that was cancelled or expired due to Office error. The regulation 
indicates that there is no fee for requesting reinstatement. It also 
sets out the deadlines for submitting such requests, as discussed under 
the heading ``Establish Certainty Regarding Timeliness,'' and the 
nature of proof necessary to support an allegation of Office error in 
the abandonment of the relevant application or cancellation/expiration 
of the relevant registration. Further, the regulation provides an 
avenue for requesting waiver of the requirements if the applicant or 
registrant is not entitled to reinstatement.
    The rationale for the changes to the deadline for requesting 
reinstatement of a registration when the registrant did not receive a 
notice of cancellation is discussed above. The TMEP currently sets out 
the deadlines for requesting reinstatement of an application or 
registration that was abandoned, cancelled, or expired due to Office 
error. TMEP Sec. Sec.  1712.01, 1712.02(a). Other requirements, such as 
the nature of proof required to establish Office error, are also set 
out in the TMEP. However, although the TMEP sets out the deadlines and 
guidelines for submitting and handling requests for reinstatement, it 
does not have the force of law. Codifying the deadlines for filing a 
request for reinstatement in a separate rule that also lists the types 
of proof necessary to warrant such remedial action provides clear and 
definite standards regarding an applicant's or registrant's burden. It 
also furnishes the legal underpinnings of the Office's authority to 
grant or deny a request for reinstatement and provides applicants and 
owners of registrations with the benefit of an entitlement to relief 
when the standards of the rules are met.
    If an applicant or registrant is found not to be entitled to 
reinstatement, the rule also provides a possible avenue of relief in 
that the request may be construed as a petition to the Director under 
Sec.  2.146 or a petition to revive under Sec.  2.66, if appropriate. 
In addition, if the applicant or registrant is unable to meet the 
timeliness requirement for filing the request, the rule provides that 
the applicant or registrant may submit a petition to the Director under 
Sec.  2.146(a)(5) to request a waiver of that requirement.

Proposed Rule: Comments and Responses

    The USPTO published a proposed rule on October 28, 2016, at 81 FR 
74997, soliciting comments on the proposed amendments. In response, the 
USPTO received comments from three organizations and one individual. 
The commenters generally supported the proposed rules as meeting the 
stated objectives while also raising specific issues. Those issues are 
summarized below, with similar comments grouped together, and are 
followed by the USPTO's responses. All comments are

[[Page 29405]]

posted on the USPTO's Web site at https://www.uspto.gov/trademark/trademark-updates-and-announcements/comments-proposed-rulemaking-relating-revival.
    Comment: One commenter inquired as to the meaning of 
``abandonment'' in the phrase ``Two months after the date of actual 
knowledge of the abandonment'' and whether the two-month period begins 
on the date of the missed deadline, if the party knows the deadline was 
missed, or on the date of the notice of abandonment.
    Response: As discussed above, an application is considered to be 
abandoned as of the day after the date on which a response to an Office 
action or notice of allowance is due. However, to accommodate timely 
mailed paper submissions and to ensure that the required response was 
not received and placed in the record of another application, the USPTO 
generally waits one month after the due date to update the trademark 
electronic records system to reflect the abandonment. When the 
trademark electronic records system is updated, the USPTO sends a 
computer-generated notice of abandonment to the correspondence address 
listed in the application. The provision for filing a petition or 
request for reinstatement within two months after the date of actual 
knowledge of an abandonment or cancellation/expiration, but not later 
than six months after the date the trademark electronic records system 
indicates that the application is abandoned or the registration is 
cancelled/expired, applies specifically when an applicant declares that 
it did not receive a notice of abandonment, or a registrant declares 
that it did not receive a notice of cancellation/expiration or the 
Office did not issue such a notice. If the applicant or registrant did 
not receive a notice that was issued, the applicant or registrant would 
presumably not be aware of the date of the notice and the two-month 
time period would start running on the date the applicant or registrant 
had actual knowledge of the abandonment or cancellation/expiration.
    However, as also discussed above, if an applicant or registrant 
does not receive a notice from the USPTO regarding the abandonment of 
its application, cancellation/expiration of its registration, or denial 
of some other request, but otherwise learns of the abandonment, 
cancellation/expiration, or denial, the applicant or registrant must 
have been duly diligent in tracking the status of its application or 
registration in order to be granted revival, reinstatement, or other 
action by the Director. To be considered duly diligent, an applicant 
must check the status of the application at least every six months 
between the filing date of the application and issuance of a 
registration. After filing an affidavit of use or excusable nonuse 
under section 8 or section 71 of the Act or a renewal application under 
section 9 of the Act, a registrant must check the status of the 
registration every six months until the registrant receives notice that 
the affidavit or renewal application has been accepted or refused. The 
provision for filing a petition or request for reinstatement when an 
applicant or registrant did not receive a notice of abandonment or of 
cancellation/expiration clarifies that, even if a petition is filed 
within two months of actual knowledge, it will not be considered timely 
if the date of filing is later than six months after the date the 
trademark electronic records system indicates that the application is 
abandoned or cancelled/expired, because the applicant or registrant was 
not duly diligent.
    Comment: One commenter requested that the USPTO explain why the 
deadlines refer to a notice of cancellation/expiration when the Office 
does not currently issue such a notice for the failure to file a timely 
Sec.  8 affidavit or a Sec.  9 renewal application. The commenter also 
asked the Office to begin issuing a notice of cancellation/expiration 
for any registration that is cancelled or expired for failure to file a 
timely Sec.  8 affidavit and/or a Sec.  9 renewal application.
    Response: The USPTO does not issue a notice of cancellation/
expiration when a registrant fails to file a timely Sec.  8 affidavit 
and/or a Sec.  9 renewal application, nor does it plan to do so, 
because there is no remedy in such situations. Sections 8(a) and 71(a) 
of the Trademark Act, 15 U.S.C. 1058(a), 1141k(a), require an affidavit 
or declaration of use or excusable nonuse during the sixth year after 
the date of registration, at the end of each successive ten-year period 
following the date of registration, or within a six-month grace period 
after each required period. Section 9 of the Trademark Act, 15 U.S.C. 
1059, provides that registrations resulting from applications based on 
section 1 or section 44 of the Trademark Act may be renewed for 
successive periods of ten years following the date of registration and 
that the application for renewal be filed within one year before the 
expiration of the ten-year period or within the six-month grace period 
after the expiration of the ten-year period. If the Sec.  8 or Sec.  71 
affidavit is not filed within the statutory filing period (which 
includes the grace period), the registration shall be cancelled. If the 
Sec.  9 renewal application is not filed within the statutory filing 
period (which includes the grace period), the registration expires. The 
duration of a registration and the time frames for filing the 
maintenance and renewal documents are statutory requirements, which the 
USPTO has no authority to waive, and filing after the expiration of the 
grace period is not a deficiency that can be cured. Therefore, the 
filing of a petition in response to a notice of cancellation/expiration 
would provide no remedy in such situations. The petition would be 
dismissed since the Director is without authority to provide any 
relief.
    The USPTO also notes that it sends a courtesy email reminder of 
maintenance filing deadlines to trademark owners who authorize email 
communication and maintain a current email address with the USPTO.
    Comment: Two commenters expressed support for the proposed rules, 
but were concerned that the proposed changes appear to require 
registrants to check the USPTO's electronic records every six months 
and do not make it clear that this requirement is linked to the 
pendency of a filed affidavit of use or excusable nonuse under Sec.  8 
or Sec.  71 of the Trademark Act or a renewal application under Sec.  9 
of the Trademark Act. One of the commenters recommended a revision to 
the proposed revised rules and the comments to clarify that the 
requirement to check the status of a registration (as compared to an 
application) every six months is only applicable during the time that 
the registrant is waiting for the USPTO to take action on a filed 
affidavit of use or excusable nonuse under Sec.  8 or Sec.  71 or a 
renewal application under Sec.  9.
    Response: The USPTO appreciates the commenters' support of the rule 
changes and concurs that the requirement to check the status of a 
registration every six months is only applicable during the time that 
the registrant is waiting for the USPTO to take action on a filed 
affidavit of use or excusable nonuse under Sec.  8 or Sec.  71 or a 
renewal application under Sec.  9. To that end, Sec. Sec.  
2.64(b)(1)(ii) and 2.146(d)(2)(ii) have been revised to indicate that 
the deadlines recited therein apply where the registrant has timely 
filed an affidavit of use or excusable non-use under Sec.  8 or Sec.  
71 or a renewal application under Sec.  9.
    Costs and Benefits: This rulemaking is not considered to be 
economically significant under Executive Order 12866 (Sept. 30, 1993).

[[Page 29406]]

Discussion of Regulatory Changes

    The USPTO adds Sec.  2.64 and amends Sec. Sec.  2.66 and 2.146 to 
clarify the requirements for submitting petitions to revive an 
abandoned application and petitions to the Director regarding other 
matters, as described in the section-by-section analysis below.
    The USPTO adds Sec.  2.64 to codify the requirements for requests 
to reinstate an application that was abandoned or a registration that 
was cancelled or expired, due to Office error. After internal review, 
the provisions in Sec. Sec.  2.64(a)(2)(iv) and (b)(2)(iv) of the 
proposed rule regarding the correspondence address were further revised 
for enhanced clarity. In response to comments from stakeholders, Sec.  
2.64(b)(1)(ii) was revised to clarify that the deadlines apply where 
the registrant has timely filed an affidavit of use or excusable non-
use under section 8 or 71 of the Act or a renewal application under 
section 9 of the Act.
    The USPTO amends the title of Sec.  2.66 to ``Revival of 
applications abandoned in full or in part due to unintentional delay.''
    The USPTO amends Sec.  2.66(a) by adding the title ``Deadline'' and 
the wording ``in full or in part'' and ``by not later than,'' amends 
Sec.  2.66(a)(1) by indicating that the deadline is not later than two 
months after the issue date of the notice of abandonment in full or in 
part, and amends Sec.  2.66(a)(2) by revising the deadline if the 
applicant did not receive the notice of abandonment.
    The USPTO amends Sec.  2.66(b) by adding the title ``Petition to 
Revive Application Abandoned in Full or in Part for Failure to Respond 
to an Office Action'' and rewords the paragraph for clarity and to add 
``in full or in part''; revises Sec.  2.66(b)(3) to clarify that (1) if 
a response to the outstanding Office action is submitted, it must be 
properly signed, (2) non-receipt of the same Office action or 
notification can be asserted only once, and (3) if the abandonment is 
after a final Office action, the response is treated as a request for 
reconsideration; and adds Sec.  2.66(b)(3)(i)-(ii) to set out the 
requirements for requesting revival when the abandonment occurs after a 
final Office action. After internal review, the provision in Sec.  
2.66(b)(3) contained in the proposed rule limiting an assertion of non-
receipt of an Office action was further revised for enhanced clarity.
    The USPTO amends Sec.  2.66(c) by adding the title ``Petition to 
Revive Application Abandoned for Failure to Respond to a Notice of 
Allowance''; adds Sec.  2.66(c)(2)(i)-(iv) to incorporate and further 
clarify requirements in current Sec. Sec.  2.66(c)(4) and (5), to 
indicate that non-receipt of a notice of allowance can be asserted only 
once, and to set out requirements for a multiple-basis application; 
deletes current Sec.  2.66(c)(3)-(4); and redesignates current Sec.  
2.66(c)(5) as Sec.  2.66(c)(3) and deletes the wording prior to ``the 
applicant must file.'' After internal review, the provision in Sec.  
2.66(c)(2)(iii) contained in the proposed rule limiting an assertion of 
non-receipt of the notice of allowance was revised for enhanced 
clarity.
    The USPTO amends Sec.  2.66(d) by adding the title ``Statement of 
Use or Petition to Substitute a Basis May Not Be Filed More Than 36 
Months After Issuance of the Notice of Allowance'' and rewords the 
paragraph for clarity.
    The USPTO deletes current Sec.  2.66(e).
    The USPTO redesignates current Sec.  2.66(f) as Sec.  2.66(e), adds 
the title ``Request for Reconsideration,'' rewords the paragraph for 
clarity, and revises paragraphs (1) and (2) to clarify the requirements 
for requesting reconsideration of a petition to revive that has been 
denied.
    The USPTO amends Sec.  2.146(b) by deleting the wording 
``considered to be.''
    The USPTO amends Sec.  2.146(d) by deleting the current paragraph 
and adding a sentence introducing new Sec.  2.146(d)(1)-(2)(iii), which 
sets out the deadlines for filing a petition. In response to comments 
from stakeholders, Sec.  2.146(d)(2)(ii) was revised to clarify that 
the deadlines apply where the registrant has timely filed an affidavit 
of use or excusable non-use under section 8 or 71 of the Act or a 
renewal application under section 9 of the Act.
    The USPTO amends Sec.  2.146(e)(1) by changing the wording ``within 
fifteen days from the date of issuance'' and ``within fifteen days from 
the date of service'' to ``by not later than fifteen days after the 
issue date'' and ``by not later than fifteen days after the date of 
service.'' The USPTO amends Sec.  2.146(e)(2) by changing the wording 
``within thirty days after the date of issuance'' and ``within fifteen 
days from the date of service'' to ``by not later than thirty days 
after the issue date'' and ``by not later than fifteen days after the 
date of service.''
    The USPTO deletes current Sec.  2.146(i).
    The USPTO redesignates current Sec.  2.146(j) as new Sec.  
2.146(i), deletes the wording ``the petitioner,'' and revises 
paragraphs (1) and (2) to clarify the requirements for requesting 
reconsideration of a petition to revive that has been denied.

Rulemaking Considerations

    Administrative Procedure Act: The changes in this rulemaking 
involve rules of agency practice and procedure, and/or interpretive 
rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) 
(Interpretive rules ``advise the public of the agency's construction of 
the statutes and rules which it administers.'' (citation and internal 
quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y 
of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that 
clarifies interpretation of a statute is interpretive.); Bachow 
Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (Rules 
governing an application process are procedural under the 
Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 
F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were 
procedural where they did not change the substantive standard for 
reviewing claims.).
    Accordingly, prior notice and opportunity for public comment for 
the changes in this rulemaking are not required pursuant to 5 U.S.C. 
553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (Notice-
and-comment procedures are required neither when an agency ``issue[s] 
an initial interpretive rule'' nor ``when it amends or repeals that 
interpretive rule.''); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-
37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 
2(b)(2)(B), does not require notice and comment rulemaking for 
``interpretative rules, general statements of policy, or rules of 
agency organization, procedure, or practice'' (quoting 5 U.S.C. 
553(b)(A))). However, the Office chose to seek public comment before 
implementing the rule to benefit from the public's input.
    Similarly, the 30-day delay in effectiveness is not applicable 
because this rule is not a substantive rule as the changes herein have 
no impact on the standard for reviewing trademark applications. 5 
U.S.C. 553(d). As discussed above, this rulemaking involves rules of 
agency practice and procedure, consisting of changes to the deadlines 
and requirements for requesting revival, reinstatement, or other action 
by the Director. These changes are procedural in nature and will have 
no substantive impact on the evaluation of a trademark application. 
Therefore, the requirement for a 30-day delay in effectiveness is not 
applicable.
    Regulatory Flexibility Act: The Deputy General Counsel for General 
Law of the USPTO has certified to the Chief Counsel for Advocacy of the 
Small

[[Page 29407]]

Business Administration that this final rule will not have a 
significant economic impact on a substantial number of small entities. 
See Regulatory Flexibility Act, 5 U.S.C. 605(b).
    This rule amends the regulations to provide detailed deadlines and 
requirements for petitions to revive an abandoned application and 
petitions to the Director regarding other matters and to codify USPTO 
practice regarding requests for reinstatement of abandoned applications 
and cancelled or expired registrations. The rule will apply to all 
persons seeking a revival or reinstatement of an abandoned trademark 
application or registration or other equitable action by the Director. 
Applicants for a trademark are not industry specific and may consist of 
individuals, small businesses, non-profit organizations, and large 
corporations. The USPTO does not collect or maintain statistics on 
small- versus large-entity applicants, and this information would be 
required in order to determine the number of small entities that would 
be affected by the rule.
    The burdens to all entities, including small entities, imposed by 
these rule changes will be minor procedural requirements on parties 
submitting petitions to revive an abandoned application and petitions 
to the Director regarding other matters and those submitting requests 
for reinstatement of abandoned applications and cancelled or expired 
registrations. The changes do not impose any additional economic burden 
in connection with the changes as they merely clarify existing 
requirements or codify existing procedures.
    Executive Order 12866 (Regulatory Planning and Review): This 
rulemaking has been determined to be not significant for purposes of 
Executive Order 12866 (Sept. 30, 1993).
    Executive Order 13563 (Improving Regulation and Regulatory Review): 
The USPTO has complied with Executive Order 13563 (Jan. 18, 2011). 
Specifically, the USPTO has, to the extent feasible and applicable: (1) 
Made a reasoned determination that the benefits justify the costs of 
the rule changes; (2) tailored the rules to impose the least burden on 
society consistent with obtaining the regulatory objectives; (3) 
selected a regulatory approach that maximizes net benefits; (4) 
specified performance objectives; (5) identified and assessed available 
alternatives; (6) provided the public with a meaningful opportunity to 
participate in the regulatory process, including soliciting the views 
of those likely affected prior to issuing a notice of proposed 
rulemaking, and provided online access to the rulemaking docket; (7) 
attempted to promote coordination, simplification, and harmonization 
across government agencies and identified goals designed to promote 
innovation; (8) considered approaches that reduce burdens and maintain 
flexibility and freedom of choice for the public; and (9) ensured the 
objectivity of scientific and technological information and processes, 
to the extent applicable.
    Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs): Because this rulemaking has been determined to be 
not significant for purposes of Executive Order 12866, the requirements 
of Executive Order 13771 (Jan. 30, 2017) do not apply. See Guidance 
Implementing Executive Order 13771, Titled ``Reducing Regulation and 
Controlling Regulatory Costs,'' at page 3 (OMB mem.) (April 5, 2017).
    Executive Order 13132 (Federalism): This rulemaking does not 
contain policies with federalism implications sufficient to warrant 
preparation of a Federalism Assessment under Executive Order 13132 
(Aug. 4, 1999).
    Congressional Review Act: Under the Congressional Review Act 
provisions of the Small Business Regulatory Enforcement Fairness Act of 
1996 (5 U.S.C. 801 et seq.), prior to issuing any final rule, the USPTO 
will submit a report containing the final rule and other required 
information to the United States Senate, the United States House of 
Representatives, and the Comptroller General of the Government 
Accountability Office. The changes in this notice are not expected to 
result in an annual effect on the economy of 100 million dollars or 
more, a major increase in costs or prices, or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets. 
Therefore, this notice is not expected to result in a ``major rule'' as 
defined in 5 U.S.C. 804(2).
    Unfunded Mandates Reform Act of 1995: The changes in this 
rulemaking do not involve a Federal intergovernmental mandate that will 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, of 100 million dollars (as adjusted) or more in any one 
year, or a Federal private sector mandate that will result in the 
expenditure by the private sector of 100 million dollars (as adjusted) 
or more in any one year, and will not significantly or uniquely affect 
small governments. Therefore, no actions are necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 
1501 et seq.
    Paperwork Reduction Act: This rulemaking involves information 
collection requirements that are subject to review by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). The collection of information involved in 
this rule has been reviewed and previously approved by OMB under 
control numbers 0651-0051, 0651-0054, and 0651-0061.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB control number.

List of Subjects in 37 CFR Part 2

    Administrative practice and procedure, Trademarks.

    For the reasons stated in the preamble and under the authority 
contained in 15 U.S.C. 1123 and 35 U.S.C. 2, as amended, the Office 
amends part 2 of title 37 as follows:

PART 2--RULES OF PRACTICE IN TRADEMARK CASES

0
1. The authority citation for 37 CFR Part 2 continues to read as 
follows:

    Authority:  15 U.S.C. 1113, 15 U.S.C. 1123, 35 U.S.C. 2, Section 
10 of Public Law 112-29, unless otherwise noted.


0
2. Add Sec.  2.64 to read as follows:


Sec.  2.64   Reinstatement of applications and registrations abandoned, 
cancelled, or expired due to Office error.

    (a) Request for Reinstatement of an Abandoned Application. The 
applicant may file a written request to reinstate an application 
abandoned due to Office error. There is no fee for a request for 
reinstatement.
    (1) Deadline. The applicant must file the request by not later 
than:
    (i) Two months after the issue date of the notice of abandonment; 
or
    (ii) Two months after the date of actual knowledge of the 
abandonment and not later than six months after the date the trademark 
electronic records system indicates that the application is abandoned, 
where the applicant declares under Sec.  2.20 or 28 U.S.C. 1746 that it 
did not receive the notice of abandonment.
    (2) Requirements. A request to reinstate an application abandoned 
due to Office error must include:
    (i) Proof that a response to an Office action, a statement of use, 
or a request

[[Page 29408]]

for extension of time to file a statement of use was timely filed and a 
copy of the relevant document;
    (ii) Proof of actual receipt by the Office of a response to an 
Office action, a statement of use, or a request for extension of time 
to file a statement of use and a copy of the relevant document;
    (iii) Proof that the Office processed a fee in connection with the 
filing at issue and a copy of the relevant document;
    (iv) Proof that the Office sent the Office action or notice of 
allowance to an address that is not the designated correspondence 
address; or
    (v) Other evidence, or factual information supported by a 
declaration under Sec.  2.20 or 28 U.S.C. 1746, demonstrating Office 
error in abandoning the application.
    (b) Request for Reinstatement of Cancelled or Expired Registration. 
The registrant may file a written request to reinstate a registration 
cancelled or expired due to Office error. There is no fee for the 
request for reinstatement.
    (1) Deadline. The registrant must file the request by not later 
than:
    (i) Two months after the issue date of the notice of cancellation/
expiration; or
    (ii) Where the registrant has timely filed an affidavit of use or 
excusable non-use under section 8 or 71 of the Act, or a renewal 
application under section 9 of the Act, two months after the date of 
actual knowledge of the cancellation/expiration and not later than six 
months after the date the trademark electronic records system indicates 
that the registration is cancelled/expired, where the registrant 
declares under Sec.  2.20 or 28 U.S.C. 1746 that it did not receive the 
notice of cancellation/expiration or where the Office did not issue a 
notice.
    (2) Requirements. A request to reinstate a registration cancelled/
expired due to Office error must include:
    (i) Proof that an affidavit or declaration of use or excusable 
nonuse, a renewal application, or a response to an Office action was 
timely filed and a copy of the relevant document;
    (ii) Proof of actual receipt by the Office of an affidavit or 
declaration of use or excusable nonuse, a renewal application, or a 
response to an Office action and a copy of the relevant document;
    (iii) Proof that the Office processed a fee in connection with the 
filing at issue and a copy of the relevant document;
    (iv) Proof that the Office sent the Office action to an address 
that is not the designated correspondence address; or
    (v) Other evidence, or factual information supported by a 
declaration under Sec.  2.20 or 28 U.S.C. 1746, demonstrating Office 
error in cancelling/expiring the registration.
    (c) Request for Reinstatement May be Construed as Petition. If an 
applicant or registrant is not entitled to reinstatement, a request for 
reinstatement may be construed as a petition to the Director under 
Sec.  2.146 or a petition to revive under Sec.  2.66, if appropriate. 
If the applicant or registrant is unable to meet the timeliness 
requirement under paragraphs (a)(1) or (b)(1) of this section for 
filing the request, the applicant or registrant may submit a petition 
to the Director under Sec.  2.146(a)(5) to request a waiver of the 
rule.

0
3. Revise Sec.  2.66 to read as follows:


Sec.  2.66   Revival of applications abandoned in full or in part due 
to unintentional delay.

    (a) Deadline. The applicant may file a petition to revive an 
application abandoned in full or in part because the applicant did not 
timely respond to an Office action or notice of allowance, if the delay 
was unintentional. The applicant must file the petition by not later 
than:
    (1) Two months after the issue date of the notice of abandonment in 
full or in part; or
    (2) Two months after the date of actual knowledge of the 
abandonment and not later than six months after the date the trademark 
electronic records system indicates that the application is abandoned 
in full or in part, where the applicant declares under Sec.  2.20 or 28 
U.S.C. 1746 that it did not receive the notice of abandonment.
    (b) Petition To Revive Application Abandoned in Full or in Part for 
Failure To Respond to an Office Action. A petition to revive an 
application abandoned in full or in part because the applicant did not 
timely respond to an Office action must include:
    (1) The petition fee required by Sec.  2.6;
    (2) A statement, signed by someone with firsthand knowledge of the 
facts, that the delay in filing the response on or before the due date 
was unintentional; and
    (3) A response to the Office action, signed pursuant to Sec.  
2.193(e)(2), or a statement that the applicant did not receive the 
Office action or the notification that an Office action issued. If the 
applicant asserts that the unintentional delay is based on non-receipt 
of an Office action or notification, the applicant may not assert non-
receipt of the same Office action or notification in a subsequent 
petition. When the abandonment is after a final Office action, the 
response is treated as a request for reconsideration under Sec.  
2.63(b)(3) and the applicant must also file:
    (i) A notice of appeal to the Trademark Trial and Appeal Board 
under Sec.  2.141 or a petition to the Director under Sec.  2.146, if 
permitted by Sec.  2.63(b)(2)(iii); or
    (ii) A statement that no appeal or petition is being filed from the 
final refusal(s) or requirement(s).
    (c) Petition To Revive Application Abandoned for Failure To Respond 
to a Notice of Allowance. A petition to revive an application abandoned 
because the applicant did not timely respond to a notice of allowance 
must include:
    (1) The petition fee required by Sec.  2.6;
    (2) A statement, signed by someone with firsthand knowledge of the 
facts, that the delay in filing the statement of use (or request for 
extension of time to file a statement of use) on or before the due date 
was unintentional; and one of the following:
    (i) A statement of use under Sec.  2.88, signed pursuant to Sec.  
2.193(e)(1), and the required fees for the number of requests for 
extensions of time to file a statement of use that the applicant should 
have filed under Sec.  2.89 if the application had never been 
abandoned;
    (ii) A request for an extension of time to file a statement of use 
under Sec.  2.89, signed pursuant to Sec.  2.193(e)(1), and the 
required fees for the number of requests for extensions of time to file 
a statement of use that the applicant should have filed under Sec.  
2.89 if the application had never been abandoned;
    (iii) A statement that the applicant did not receive the notice of 
allowance and a request to cancel said notice and issue a new notice. 
If the applicant asserts that the unintentional delay in responding is 
based on non-receipt of the notice of allowance, the applicant may not 
assert non-receipt of the notice of allowance in a subsequent petition; 
or
    (iv) In a multiple-basis application, an amendment, signed pursuant 
to Sec.  2.193(e)(2), deleting the section 1(b) basis and seeking 
registration based on section 1(a) and/or section 44(e) of the Act.
    (3) The applicant must file any further requests for extensions of 
time to file a statement of use under Sec.  2.89 that become due while 
the petition is pending, or file a statement of use under Sec.  2.88.
    (d) Statement of Use or Petition To Substitute a Basis May Not Be 
Filed More Than 36 Months After Issuance of the Notice of Allowance. In 
an application under section 1(b) of the Act, the Director will not 
grant a

[[Page 29409]]

petition under this section if doing so would permit an applicant to 
file a statement of use, or a petition under Sec.  2.35(b) to 
substitute a basis, more than 36 months after the issue date of the 
notice of allowance under section 13(b)(2) of the Act.
    (e) Request for Reconsideration. If the Director denies a petition 
to revive under this section, the applicant may request 
reconsideration, if:
    (1) The applicant files the request by not later than:
    (i) Two months after the issue date of the decision denying the 
petition; or
    (ii) Two months after the date of actual knowledge of the decision 
denying the petition and not later than six months after the issue date 
of the decision where the applicant declares under Sec.  2.20 or 28 
U.S.C. 1746 that it did not receive the decision; and
    (2) The applicant pays a second petition fee under Sec.  2.6.

0
4. Revise Sec.  2.146 to read as follows:


Sec.  2.146   Petitions to the Director.

    (a) Petition may be taken to the Director:
    (1) From any repeated or final formal requirement of the examiner 
in the ex parte prosecution of an application if permitted by Sec.  
2.63(a) and (b);
    (2) In any case for which the Act of 1946, or Title 35 of the 
United States Code, or this Part of Title 37 of the Code of Federal 
Regulations specifies that the matter is to be determined directly or 
reviewed by the Director;
    (3) To invoke the supervisory authority of the Director in 
appropriate circumstances;
    (4) In any case not specifically defined and provided for by this 
Part of Title 37 of the Code of Federal Regulations; or
    (5) In an extraordinary situation, when justice requires and no 
other party is injured thereby, to request a suspension or waiver of 
any requirement of the rules not being a requirement of the Act of 
1946.
    (b) Questions of substance arising during the ex parte prosecution 
of applications, including, but not limited to, questions arising under 
sections 2, 3, 4, 5, 6, and 23 of the Act of 1946, are not appropriate 
subject matter for petitions to the Director.
    (c) Every petition to the Director shall include a statement of the 
facts relevant to the petition, the points to be reviewed, the action 
or relief requested, and the fee required by Sec.  2.6. Any brief in 
support of the petition shall be embodied in or accompany the petition. 
The petition must be signed by the petitioner, someone with legal 
authority to bind the petitioner (e.g., a corporate officer or general 
partner of a partnership), or a practitioner qualified to practice 
under Sec.  11.14 of this chapter, in accordance with the requirements 
of Sec.  2.193(e)(5). When facts are to be proved on petition, the 
petitioner must submit proof in the form of verified statements signed 
by someone with firsthand knowledge of the facts to be proved, and any 
exhibits.
    (d) Unless a different deadline is specified elsewhere in this 
chapter, a petition under this section must be filed by not later than:
    (1) Two months after the issue date of the action, or date of 
receipt of the filing, from which relief is requested; or
    (2) Where the applicant or registrant declares under Sec.  2.20 or 
28 U.S.C. 1746 that it did not receive the action, or where no action 
was issued, the petition must be filed by not later than:
    (i) Two months of actual knowledge of the abandonment of an 
application and not later than six months after the date the trademark 
electronic records system indicates that the application is abandoned 
in full or in part;
    (ii) Where the registrant has timely filed an affidavit of use or 
excusable non-use under Section 8 or 71 of the Act, or a renewal 
application under Section 9 of the Act, two months after the date of 
actual knowledge of the cancellation/expiration of a registration and 
not later than six months after the date the trademark electronic 
records system indicates that the registration is cancelled/expired; or
    (iii) Two months after the date of actual knowledge of the denial 
of certification of an international application under Sec.  7.13(b) 
and not later than six months after the trademark electronic records 
system indicates that certification is denied.
    (e)(1) A petition from the grant or denial of a request for an 
extension of time to file a notice of opposition must be filed by not 
later than fifteen days after the issue date of the grant or denial of 
the request. A petition from the grant of a request must be served on 
the attorney or other authorized representative of the potential 
opposer, if any, or on the potential opposer. A petition from the 
denial of a request must be served on the attorney or other authorized 
representative of the applicant, if any, or on the applicant. Proof of 
service of the petition must be made as provided by Sec.  2.119. The 
potential opposer or the applicant, as the case may be, may file a 
response by not later than fifteen days after the date of service of 
the petition and must serve a copy of the response on the petitioner, 
with proof of service as provided by Sec.  2.119. No further document 
relating to the petition may be filed.
    (2) A petition from an interlocutory order of the Trademark Trial 
and Appeal Board must be filed by not later than thirty days after the 
issue date of the order from which relief is requested. Any brief in 
response to the petition must be filed, with any supporting exhibits, 
by not later than fifteen days after the date of service of the 
petition. Petitions and responses to petitions, and any documents 
accompanying a petition or response under this subsection, must be 
served on every adverse party pursuant to Sec.  2.119.
    (f) An oral hearing will not be held on a petition except when 
considered necessary by the Director.
    (g) The mere filing of a petition to the Director will not act as a 
stay in any appeal or inter partes proceeding that is pending before 
the Trademark Trial and Appeal Board, nor stay the period for replying 
to an Office action in an application, except when a stay is 
specifically requested and is granted or when Sec. Sec.  2.63(a) and 
(b) and 2.65(a) are applicable to an ex parte application.
    (h) Authority to act on petitions, or on any petition, may be 
delegated by the Director.
    (i) If the Director denies a petition, the petitioner may request 
reconsideration, if:
    (1) The petitioner files the request by not later than:
    (i) Two months after the issue date of the decision denying the 
petition; or
    (ii) Two months after the date of actual knowledge of the decision 
denying the petition and not later than six months after the issue date 
of the decision where the petitioner declares under Sec.  2.20 or 28 
U.S.C. 1746 that it did not receive the decision; and
    (2) The petitioner pays a second petition fee under Sec.  2.6.

    Dated: June 22, 2017.
Joseph D. Matal,
Performing the Functions and Duties of the Under Secretary of Commerce 
for Intellectual Property and Director of the United States Patent and 
Trademark Office.
[FR Doc. 2017-13519 Filed 6-28-17; 8:45 am]
 BILLING CODE 3510-16-P



                                                                Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations                                          29401

                                             Captain of the Port Duluth or her on-                   Federal Regulations to provide more                    determine whether to undertake one or
                                             scene representative may be contacted                   detailed procedures regarding the                      more of these actions, the party would
                                             via VHF Channel 16 or telephone at                      deadlines and requirements for petitions               refer to the status of the conflicting
                                             (715) 779–5100.                                         to revive an abandoned trademark                       application/registration and would need
                                               Dated: June 22, 2017.                                 application under 37 CFR 2.66 and                      to consult the relevant rule to determine
                                                                                                     petitions to the Director under 37 CFR                 whether the application or registration
                                             E.E. Williams,
                                                                                                     2.146. The changes also codify USPTO                   is within the time period in which the
                                             Commander, U.S. Coast Guard, Captain of
                                                                                                     practice regarding requests for                        applicant or registrant may request
                                             the Port.
                                                                                                     reinstatement of trademark applications                revival, reinstatement, or other action by
                                             [FR Doc. 2017–13576 Filed 6–28–17; 8:45 am]
                                                                                                     that were abandoned and trademark                      the Director. Thus, the effective notice
                                             BILLING CODE 9110–04–P                                  registrations that were cancelled or                   provided by the USPTO’s records plays
                                                                                                     expired, due to Office error. By                       a critical role in a party’s decision-
                                                                                                     providing more detailed procedures                     making by enabling the party to clearly
                                             DEPARTMENT OF COMMERCE                                  regarding requesting revival,                          distinguish between the dead marks that
                                                                                                     reinstatement, or other action by the                  are no longer candidates for, or
                                             Patent and Trademark Office                             Director, the rulemaking benefits                      protected by, a federal registration and
                                                                                                     applicants, registrants, and the public                those that are still able to be restored to
                                             37 CFR Part 2                                           because it: (1) Promotes the integrity of              active status.
                                             [Docket No. PTO–T–2010–0016]                            application/registration information in                   If the trademark electronic records
                                                                                                     the trademark electronic records system                system indicates that an application or
                                             RIN 0651–AC41                                                                                                  registration is dead because it is
                                                                                                     as an accurate reflection of the status of
                                                                                                     live applications and registrations; (2)               abandoned, cancelled, or expired, and
                                             Revival of Abandoned Applications,
                                                                                                     clarifies the time periods in which                    there is any doubt as to whether the
                                             Reinstatement of Abandoned
                                                                                                     applications or registrations can be                   application or registration might be
                                             Applications and Cancelled or Expired
                                                                                                     revived or reinstated after abandonment                eligible for revival, reinstatement, or
                                             Registrations, and Petitions to the
                                                                                                     or cancellation and specifies the related              other action by the Director, the costs
                                             Director
                                                                                                     filing requirements; (3) clarifies the                 and burdens discussed above may be
                                             AGENCY:  United States Patent and                       deadline for requesting that the Director              incurred unnecessarily. By providing
                                             Trademark Office, Commerce.                             take action regarding other matters; and               more detailed procedures as to the
                                             ACTION: Final rule.                                     (4) facilitates the efficient and consistent           deadlines and requirements for
                                                                                                     handling of such requests.                             requesting revival, reinstatement, or
                                             SUMMARY:    The United States Patent and                   The public relies on the trademark                  other action by the Director, these rules
                                             Trademark Office (Office or USPTO)                      electronic records system to determine                 will help the public avoid such needless
                                             amends its rules regarding petitions to                 whether a chosen mark is available for                 costs and burdens and promote the
                                             revive an abandoned trademark                           use or registration. Applicants are                    efficient and consistent processing of
                                             application and petitions to the Director               encouraged to utilize the trademark                    such requests by the Office.
                                             of the USPTO (Director) regarding other                 electronic search system, which
                                                                                                                                                            Background
                                             trademark matters and to codify USPTO                   provides access to text and images of
                                             practice regarding requests for                         marks, to determine whether a mark in                     Petition To Revive: The statutory
                                             reinstatement of abandoned trademark                    any pending application or current                     period for responding to an examining
                                             applications and cancelled or expired                   registration is similar to their mark and              attorney’s Office action is six months
                                             trademark registrations. The changes                    used on the same or related products or                from the Office action’s date of issuance.
                                             will permit the USPTO to provide more                   for the same or related services. The                  15 U.S.C. 1062(b); 37 CFR 2.62(a). If no
                                             detailed procedures regarding the                       search system also indicates the status                response is received by the USPTO
                                             deadlines and requirements for                          of an application or registration, that is,            within the statutory period, and the
                                             requesting revival, reinstatement, or                   whether the application or registration                Office action was sent to the
                                             other action by the Director. These rules               is live or dead. A ‘‘live’’ status indicates           correspondence address in the USPTO’s
                                             will thereby ensure that the public has                 the application or registration is active              records, the application is then
                                             notice of the deadlines and                             and may bar the registration of a similar              abandoned in full or in part, as
                                             requirements for making such requests,                  mark in a new application. A ‘‘dead’’                  appropriate. 37 CFR 2.65(a); Trademark
                                             facilitate the efficient and consistent                 status indicates the application has                   Manual of Examining Procedure (TMEP)
                                             processing of such requests, and                        become abandoned or the registration is                § 718.06.
                                             promote the integrity of application/                   cancelled or expired and does not serve                   The statutory period for filing a
                                             registration information in the                         as a bar to registration of a similar mark             statement of use or a request for an
                                             trademark electronic records system as                  in a new application unless it is restored             extension of time to file a statement of
                                             an accurate reflection of the status of                 to a live status pursuant to a                         use, in response to a notice of allowance
                                             applications and registrations.                         corresponding rule.                                    issued under section 13(b)(2) of the
                                                                                                        When a party’s search discloses a                   Trademark Act (Act), is also six months.
                                             DATES: This rule is effective on July 8,
                                                                                                     potentially confusingly similar mark,                  15 U.S.C. 1051(d)(1), (2); 37 CFR 2.88(a),
                                             2017.                                                   that party may incur a variety of                      2.89(a). Thus, an application is
                                             FOR FURTHER INFORMATION CONTACT:                        resulting costs and burdens, such as                   abandoned if the applicant fails to file
                                             Catherine Cain, Office of the Deputy                    those associated with investigating the                a statement of use or request for an
                                             Commissioner for Trademarks                             actual use of the disclosed mark to
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                                                                                                                                                            extension of time to file a statement of
                                             Examination Policy, by email at                         assess any conflict, proceedings to                    use within the statutory period or
                                             TMFRNotices@uspto.gov or by                             oppose the application or cancel the                   within a previously granted extension
                                             telephone at (571) 272–8946.                            registration or of the disclosed mark,                 period. 37 CFR 2.65(c), 2.88(k); TMEP
                                             SUPPLEMENTARY INFORMATION:                              civil litigation to resolve a dispute over             § 718.04.
                                                Purpose: The USPTO revises the rules                 the mark, or changing plans to avoid use                  An application is considered to be
                                             in part 2 of title 37 of the Code of                    of the party’s chosen mark. In order to                abandoned as of the day after the date


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                                             29402              Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations

                                             on which a response to an Office action                 solely due to USPTO error. TMEP                        must have been duly diligent in tracking
                                             or notice of allowance is due. TMEP                     § 1712.02(a).                                          the status of its application or
                                             § 718.06. However, to accommodate                          Petition to the Director Under 37 CFR               registration in order to be granted
                                             timely mailed paper submissions and to                  2.146: Applicants, registrants, and                    revival, reinstatement, or other action by
                                             ensure that the required response was                   parties to inter partes proceedings                    the Director. Being duly diligent means
                                             not received and placed in the record of                before the Trademark Trial and Appeal                  that a party who has not received a
                                             another application (e.g., if the                       Board (TTAB) who believe they have                     notice or acknowledgement from the
                                             applicant enters the incorrect serial                   been injured by certain adverse actions                USPTO within six months of the filing
                                             number on its response), the USPTO                      of the USPTO, or who believe that they                 has the burden of inquiring as to the
                                             generally waits one month after the due                 cannot comply with the requirements of                 status of action on its filing and
                                             date to update the trademark electronic                 the Trademark Rules of Practice (37 CFR                requesting in writing that corrective
                                             records system to reflect the                           parts 2, 3, 6, and 7) because of an                    action be taken when necessary, to
                                             abandonment. When the trademark                         extraordinary situation, may seek                      protect third parties who may be
                                             electronic records system is updated,                   equitable relief by filing a petition under            harmed by reliance on inaccurate
                                             the USPTO sends a computer-generated                    37 CFR 2.146. A variety of issues may                  information regarding the status of an
                                             notice of abandonment to the                            be reviewed on petition under this                     application or registration in the
                                             correspondence address listed in the                    section. See TMEP § 1703. Generally,                   trademark electronic records system.
                                             application. Id. If an application                      unless a specific deadline is specified                See TMEP § 1705.05. For example, a
                                             becomes abandoned for failure to                        elsewhere in the rules or within this                  third party may have searched USPTO
                                             respond to an Office action or notice of                section, such as the deadlines for                     records and begun using a mark because
                                             allowance within the statutory period,                  petitions regarding actions of the TTAB                the search showed that an earlier-filed
                                             and the delay in responding was                         under § 2.146(e), a petition must be filed             application or prior registration for a
                                             unintentional, the application may be                   within two months of the date of                       conflicting mark had been abandoned or
                                             revived upon proper submission of a                     issuance of the action from which relief               cancelled. In other cases, an examining
                                             petition under 37 CFR 2.66. Prior to this               is requested and, prior to this final rule,            attorney may have searched USPTO
                                             final rule, the deadlines for filing the                no later than two months from the date                 records and approved for publication a
                                             petition were within two months after                   when Office records were updated to                    later-filed application for a conflicting
                                             the date of issuance of the notice of                   show that a registration was cancelled                 mark because the earlier-filed
                                             abandonment or within two months of                     or expired under § 2.146(d). If a                      application was shown as abandoned or
                                             actual knowledge of the abandonment,                    petitioner sought to reactivate an                     a prior registration was shown as
                                             if the applicant did not receive the                    application or registration that was                   cancelled.
                                             notice of abandonment and the                           abandoned, cancelled, or expired                          When a party seeks to revive an
                                             applicant was diligent in checking the                  because documents not received by the                  application that was abandoned or
                                             status of the application every six                     Office were lost or mishandled, the                    reinstate a registration that was
                                             months.                                                 petitioner was also required to be duly                cancelled or expired, due either to the
                                                Request for Reinstatement: If an                     diligent in checking the status of the                 failure of the applicant or registrant to
                                             applicant has proof that an application                 application or registration. The section               file a required document or to the loss
                                             was inadvertently abandoned due to a                    was traditionally invoked when papers                  or mishandling of documents sent to or
                                             USPTO error, an applicant may file a                    submitted pursuant to the mailing rules                from the USPTO, or asks the Director to
                                             request to reinstate the application,                   in § 2.197 and § 2.198 were lost.                      take some other action, the USPTO may
                                             instead of a petition to revive. TMEP                   However, the occurrence of such                        deny the request if the petitioner was
                                             § 1712.01. Prior to this final rule, an                 incidents is minimal. Further, the                     not diligent in checking the status of the
                                             applicant was required to file a request                USPTO believes that if an applicant or                 application or registration, even if the
                                             for reinstatement within two months of                  registrant has proof that documents                    petitioner shows that the USPTO
                                             the issuance date of the notice of                      mailed in accordance with the                          actually received documents or declares
                                             abandonment. Id. If the applicant                       requirements of § 2.197 or § 2.198 were                that a notice from the USPTO was never
                                             asserted that it did not receive a notice               lost or mishandled by the USPTO,                       received by the petitioner.
                                             of abandonment, the applicant was                       thereby causing the abandonment of an                     The due-diligence requirement means
                                             required to file the request within two                 application or cancellation/expiration of              that any petition filed more than two
                                             months of the date the applicant had                    a registration, the proper recourse is to              months after the notice of abandonment
                                             actual knowledge that the application                   seek relief under new § 2.64 for                       or cancellation was issued or more than
                                             was abandoned, and the applicant must                   requesting reinstatement.                              two months after Office records are
                                             have been duly diligent in monitoring                      Due-Diligence Requirement: The                      updated is likely to be dismissed as
                                             the status of the application every six                 USPTO generally processes                              untimely because the applicant or
                                             months. Id.                                             applications, responses, and other                     registrant will be unable to establish
                                                Similarly, a registrant could file a                 documents in the order in which they                   that it was duly diligent. For example,
                                             request to reinstate a cancelled or                     are received, and it is reasonable to                  if an applicant files an application in
                                             expired registration if the registrant had              expect some notice or acknowledgement                  July 1, 2016, and an Office action is
                                             proof that a required document was                      from the USPTO regarding action on a                   issued on October 15, 2016, a response
                                             timely filed and that USPTO error                       pending matter within six months of the                must be filed on or before April 15,
                                             caused the registration to be cancelled                 filing or receipt of a document. If an                 2017. If the applicant does not respond,
                                             or expired. TMEP § 1712.02. Prior to                    applicant or registrant does not receive               the trademark electronic records system
                                             implementation of this rule, there was                  a notice from the USPTO regarding the                  will be updated to show the application
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                                             no deadline for filing a request to                     abandonment of its application,                        as abandoned and a notice of
                                             reinstate a cancelled/expired                           cancellation/expiration of its                         abandonment will be sent to the
                                             registration, and the USPTO generally                   registration, or denial of some other                  applicant on or about May 15, 2017. If
                                             did not invoke the requirement for due                  request, but otherwise learns of the                   the applicant does not receive the notice
                                             diligence when there was proof that a                   abandonment, cancellation/expiration,                  of abandonment, only checks the
                                             registration was cancelled or expired                   or denial, the applicant or registrant                 trademark electronic records system in


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                                                                Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations                                         29403

                                             August 2017 (i.e., more than two months                 revive, request for reinstatement, or                  the Act. Registrants who have timely
                                             after the issue date of the notice of                   petition to the Director to take another               filed such documents and who seek
                                             abandonment and more than a year after                  action, by not later than two months                   reinstatement of a registration cancelled
                                             filing), and thereafter files a petition to             after the issue date of the notice. The                due to Office error, but who assert that
                                             revive, that petition would be denied as                addition of §§ 2.64(a)(1)(i) and (b)(1)(i)             they did not receive a notice of
                                             untimely. Even if the applicant asserts                 codifies this deadline for parties seeking             cancellation/expiration, or where no
                                             that it only became aware of the                        reinstatement of an application or                     notice was issued, must file the request
                                             issuance of the Office action and the                   registration abandoned or cancelled due                by not later than two months of actual
                                             notice of abandonment on, for example,                  to Office error and makes it consistent                knowledge of the cancellation and not
                                             July 18, 2017 (actual notice), the                      with the deadline in § 2.66(a)(1). The                 later than six months after the date the
                                             petition would be denied as untimely                    amendment to § 2.66(a) clarifies that the              trademark electronic records system
                                             because the applicant could not prove                   deadline applies to abandonments in                    indicates that the registration is
                                             that it was duly diligent in monitoring                 full or in part. Finally, the change to                cancelled/expired.
                                             the status of the application by checking               § 2.146(d) deletes the requirement that a                 As noted above, the USPTO has
                                             the status every six months.                            petition be filed no later than two                    generally not invoked the requirement
                                                Moreover, in some situations when an                 months from the date when Office                       for due diligence when there is proof
                                             applicant or owner of a registration                    records are updated to show that a                     that a registration was cancelled or
                                             asserts that it did not receive a notice of             registration is cancelled or expired. As               expired solely due to Office error.
                                             abandonment or cancellation, it is often                noted below, this deadline is extended                 Although the USPTO has a duty to
                                             difficult for the USPTO to determine                    to not later than six months after the                 correct its errors, the USPTO has a
                                             when the party had actual notice of the                 date the trademark electronic records                  concurrent duty toward third parties to
                                             abandonment/cancellation and whether                    system indicates that the registration is              ensure that the trademark electronic
                                             the party was duly diligent in                          cancelled/expired, when the registrant                 records system accurately reflects the
                                             prosecuting the application or                          declares that it did not receive the                   status of applications and registrations,
                                             maintaining the registration. By                        action or where no action was issued, to               especially given that the USPTO
                                             effectively making applicants and                       harmonize the deadlines across the                     encourages such third parties to search
                                             registrants more clearly aware of the                   relevant sections.                                     the trademark electronic records system
                                             requirement to conduct the requisite                       To establish certainty and ensure                   prior to adopting or seeking to register
                                             status checks of Office records every six               consistency, the rule also adds                        a mark. Therefore, the USPTO must
                                             months from the filing of a document,                   §§ 2.64(a)(1)(ii) and (b)(1)(ii) to codify             balance its duties to third parties who
                                             whether an application or a submission                  the deadline for all applicants and                    rely on the accuracy of the trademark
                                             requesting action by the Office, parties                registrants who assert that they did not               electronic records system and to
                                             would have sufficient notice to timely                  receive a notice of abandonment or                     registrants whose registration may have
                                             respond to any issues regarding the                     cancellation/expiration from the Office                been cancelled as a result of Office
                                             acceptance or refusal of their                          and thereafter seek reinstatement. This                error. The USPTO believes that, in order
                                             submission in the vast majority of                      deadline is identical to the deadlines                 to fulfill its duties to all parties, the
                                             circumstances. For example, if a                        implemented in §§ 2.66(a)(2) and                       requirement for due diligence should
                                             document is filed on January 2 and an                   2.146(d)(2) for applicants and registrants             apply equally to registrants who timely
                                             Office action requiring a response                      who assert that they did not receive a                 filed an affidavit of use or excusable
                                             within six months is issued on February                 notice from the Office and thereafter                  non-use under section 8 or 71 of the Act
                                             2, and if the submitting party is duly                  seek relief. Under §§ 2.64(a)(1)(ii) and               or a renewal application under section
                                             diligent and reviews the trademark                      (b)(1)(ii), if the applicant or registrant             9 of the Act, but did not receive a notice
                                             electronic records system on July 2, it                 did not receive the notice, or no notice               of cancellation/expiration, and who
                                             would learn of the issuance of the                      was issued, a petition must be filed by                then request reinstatement of their
                                             action, even if the party did not receive               not later than two months of actual                    registrations, as it does to all other
                                             it. In that situation, the party would still            knowledge that a notice was issued or                  applicants and registrants who do not
                                             have one month in which to respond                      that an action was taken by the Office                 receive notice of any other action taken
                                             timely.                                                 and not later than six months after the                by the Office. As noted above, it is
                                                                                                     date the trademark electronic records                  reasonable to expect some notice or
                                             Discussion of Changes and Rulemaking
                                                                                                     system is updated to indicate the action               acknowledgement from the USPTO
                                             Goals
                                                                                                     taken by the Office. Thus, the rule                    regarding action on a pending matter
                                               Establish Certainty Regarding                         makes clear that applicants and                        within six months of the filing of a
                                             Timeliness: The goals of the changes                    registrants must check the status of their             document. A registrant who has timely
                                             implemented herein are to harmonize                     applications and registrations every six               filed a maintenance or renewal
                                             the deadlines for requesting revival,                   months after the filing of an application              document, but has not received
                                             reinstatement, or other action by the                   or other document and thereby removes                  notification from the USPTO regarding
                                             Director and remove any uncertainty for                 any uncertainty in the Office’s                        the acceptance or refusal of the
                                             applicants, registrants, third parties, and             assessment of whether an applicant or                  document within that time frame, has
                                             the Office as to whether a request is                   registrant was duly diligent.                          the burden of inquiring as to the status
                                             timely.                                                    Balance Duties of the USPTO to                      of the USPTO’s action on the filing and
                                               In this rulemaking, the USPTO adds                    Registrants and Third Parties: Under                   requesting in writing that corrective
                                             §§ 2.64(a)(1)(i) and (b)(1)(i) and amends               this rule, the USPTO adds                              action be taken when necessary, to
                                             §§ 2.66(a)(1) and 2.146(d)(1) to clarify                § 2.64(b)(1)(ii) and § 2.146(d)(2)(ii) to
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                                                                                                                                                            protect third parties who may be
                                             that applicants and registrants who                     include the requirement for due                        harmed by reliance on inaccurate
                                             receive an official document from the                   diligence in tracking the status of a                  information regarding the status of its
                                             USPTO, such as a notice of                              registration after the timely filing of an             registration in the trademark electronic
                                             abandonment or cancellation or a denial                 affidavit of use or excusable non-use                  records system.
                                             of certification of an international                    under section 8 or 71 of the Act or a                     Maintain Pendency: The USPTO
                                             registration, must file a petition to                   renewal application under section 9 of                 herein changes § 2.66 to prevent


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                                             29404              Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations

                                             applicants from utilizing the revival                   that the applicant did not receive the                 necessary to support an allegation of
                                             process to delay prosecution by                         notice, and the petition is granted, the               Office error in the abandonment of the
                                             repeatedly asserting non-receipt of an                  USPTO will cancel the original notice of               relevant application or cancellation/
                                             Office action or notice of allowance.                   allowance and issue a new notice,                      expiration of the relevant registration.
                                             Specifically, the regulations at § 2.66(b)              giving the applicant a new six-month                   Further, the regulation provides an
                                             are amended to clarify that a response                  period in which to file a statement of                 avenue for requesting waiver of the
                                             to the outstanding Office action is                     use or request for extension of time to                requirements if the applicant or
                                             required or, if the applicant asserts that              file a statement of use.                               registrant is not entitled to
                                             the unintentional delay is based on non-                   In either situation, the USPTO sends                reinstatement.
                                             receipt of an Office action or                          the new Office action (or notice                          The rationale for the changes to the
                                             notification, the applicant may not                     directing the applicant to view the                    deadline for requesting reinstatement of
                                             assert non-receipt of the same Office                   previously issued Office action in the                 a registration when the registrant did
                                             action or notification in a subsequent                  electronic file) or notice of allowance to             not receive a notice of cancellation is
                                             petition. The USPTO also adds                           the correspondence address of record. In               discussed above. The TMEP currently
                                             § 2.66(b)(3)(i)–(ii) to clarify the                     general, under the current regulations at              sets out the deadlines for requesting
                                             requirements for requesting revival                     37 CFR 2.18, the owner of an                           reinstatement of an application or
                                             when the abandonment occurred after a                   application has a duty to maintain a                   registration that was abandoned,
                                             final Office action. The regulations at                 current and accurate correspondence                    cancelled, or expired due to Office error.
                                             § 2.66(c) are amended to clarify that if                address with the USPTO, which may be                   TMEP §§ 1712.01, 1712.02(a). Other
                                             the applicant asserts that the                          either a physical or email address. If the             requirements, such as the nature of
                                             unintentional delay is based on non-                    correspondence address changes, the                    proof required to establish Office error,
                                             receipt of a notice of allowance, the                   USPTO must be promptly notified in                     are also set out in the TMEP. However,
                                             applicant may not assert non-receipt of                 writing of the new address. If the                     although the TMEP sets out the
                                             the notice of allowance in a subsequent                 correspondence address has not                         deadlines and guidelines for submitting
                                             petition.                                               changed in the USPTO records since the                 and handling requests for reinstatement,
                                                                                                     filing of the application, the applicant is            it does not have the force of law.
                                                In some situations, an application will
                                                                                                     on notice that documents regarding its                 Codifying the deadlines for filing a
                                             become abandoned multiple times for
                                                                                                     application are being sent to that                     request for reinstatement in a separate
                                             failure to respond to an Office action or               address by virtue of its awareness of the              rule that also lists the types of proof
                                             notice of allowance, and the applicant                  abandonment of the application and its                 necessary to warrant such remedial
                                             will assert that it did not receive the                 subsequent filing of the petition to                   action provides clear and definite
                                             same Office action or the notice of                     revive.                                                standards regarding an applicant’s or
                                             allowance each time that it petitions to                   Allowing an applicant who is on                     registrant’s burden. It also furnishes the
                                             revive the application. Under the                       notice that the Office has taken action                legal underpinnings of the Office’s
                                             regulations implemented herein at                       in an application to continually assert                authority to grant or deny a request for
                                             § 2.66(b)(3) and § 2.66(c)(2)(iii), the                 non-receipt of the same Office action or               reinstatement and provides applicants
                                             Office limits the applicant’s ability to                notice of allowance significantly delays               and owners of registrations with the
                                             assert more than once that the                          prosecution of the application. It also                benefit of an entitlement to relief when
                                             unintentional delay is based on non-                    results in uncertainty for the public,                 the standards of the rules are met.
                                             receipt of the same Office action or the                which relies on the trademark electronic                  If an applicant or registrant is found
                                             notice of allowance. When an applicant                  records system to determine whether a                  not to be entitled to reinstatement, the
                                             becomes aware that its application has                  chosen mark is available for use or                    rule also provides a possible avenue of
                                             been abandoned, either via receipt of a                 registration. Therefore, because the                   relief in that the request may be
                                             notice of abandonment or after checking                 applicant is on notice that documents                  construed as a petition to the Director
                                             the status of the application, the                      regarding its application are being sent               under § 2.146 or a petition to revive
                                             applicant is thereby on notice that the                 to the address of record, this final rule              under § 2.66, if appropriate. In addition,
                                             Office has taken action on the                          limits an applicant to asserting only                  if the applicant or registrant is unable to
                                             application. If the applicant then files a              once that the unintentional delay is                   meet the timeliness requirement for
                                             petition to revive an application held                  based on non-receipt of the same Office                filing the request, the rule provides that
                                             abandoned for failure to respond to an                  action or notice of allowance. If the                  the applicant or registrant may submit a
                                             Office action, which states that the                    correspondence address has changed                     petition to the Director under
                                             applicant did not receive the action, and               since the filing of the application, the               § 2.146(a)(5) to request a waiver of that
                                             the petition is granted, the USPTO will                 applicant is responsible for updating the              requirement.
                                             issue a new Office action, if there are                 address, as noted above, so that any
                                             additional issues that need to be raised                further Office actions or notices will be              Proposed Rule: Comments and
                                             since the original Office action was sent,              sent to the correct address.                           Responses
                                             and provide the applicant with a new                       Codify Requirements for                                The USPTO published a proposed
                                             six-month response period. If all issues                Reinstatement: The USPTO hereby                        rule on October 28, 2016, at 81 FR
                                             previously raised remain the same, after                implements a new regulation at § 2.64 to               74997, soliciting comments on the
                                             reviving the application, the USPTO                     codify the requirements for seeking                    proposed amendments. In response, the
                                             will send a notice to the applicant                     reinstatement of an application that was               USPTO received comments from three
                                             directing the applicant to view the                     abandoned or a registration that was                   organizations and one individual. The
                                             previously issued Office action in the                  cancelled or expired due to Office error.              commenters generally supported the
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                                             electronic file for the application                     The regulation indicates that there is no              proposed rules as meeting the stated
                                             available on the USPTO’s Web site and                   fee for requesting reinstatement. It also              objectives while also raising specific
                                             provide the applicant with a new six-                   sets out the deadlines for submitting                  issues. Those issues are summarized
                                             month response period. When a petition                  such requests, as discussed under the                  below, with similar comments grouped
                                             to revive an application for failure to                 heading ‘‘Establish Certainty Regarding                together, and are followed by the
                                             respond to a notice of allowance states                 Timeliness,’’ and the nature of proof                  USPTO’s responses. All comments are


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                                                                Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations                                          29405

                                             posted on the USPTO’s Web site at                       diligent, an applicant must check the                  period), the registration shall be
                                             https://www.uspto.gov/trademark/                        status of the application at least every               cancelled. If the § 9 renewal application
                                             trademark-updates-and-                                  six months between the filing date of                  is not filed within the statutory filing
                                             announcements/comments-proposed-                        the application and issuance of a                      period (which includes the grace
                                             rulemaking-relating-revival.                            registration. After filing an affidavit of             period), the registration expires. The
                                                Comment: One commenter inquired                      use or excusable nonuse under section                  duration of a registration and the time
                                             as to the meaning of ‘‘abandonment’’ in                 8 or section 71 of the Act or a renewal                frames for filing the maintenance and
                                             the phrase ‘‘Two months after the date                  application under section 9 of the Act,                renewal documents are statutory
                                             of actual knowledge of the                              a registrant must check the status of the              requirements, which the USPTO has no
                                             abandonment’’ and whether the two-                      registration every six months until the                authority to waive, and filing after the
                                             month period begins on the date of the                  registrant receives notice that the                    expiration of the grace period is not a
                                             missed deadline, if the party knows the                 affidavit or renewal application has                   deficiency that can be cured. Therefore,
                                             deadline was missed, or on the date of                  been accepted or refused. The provision                the filing of a petition in response to a
                                             the notice of abandonment.                              for filing a petition or request for                   notice of cancellation/expiration would
                                                Response: As discussed above, an                     reinstatement when an applicant or                     provide no remedy in such situations.
                                             application is considered to be                         registrant did not receive a notice of                 The petition would be dismissed since
                                             abandoned as of the day after the date                  abandonment or of cancellation/                        the Director is without authority to
                                             on which a response to an Office action                 expiration clarifies that, even if a                   provide any relief.
                                             or notice of allowance is due. However,                 petition is filed within two months of
                                             to accommodate timely mailed paper                                                                                The USPTO also notes that it sends a
                                                                                                     actual knowledge, it will not be
                                             submissions and to ensure that the                                                                             courtesy email reminder of maintenance
                                                                                                     considered timely if the date of filing is
                                             required response was not received and                                                                         filing deadlines to trademark owners
                                                                                                     later than six months after the date the
                                             placed in the record of another                                                                                who authorize email communication
                                                                                                     trademark electronic records system
                                             application, the USPTO generally waits                                                                         and maintain a current email address
                                                                                                     indicates that the application is
                                             one month after the due date to update                                                                         with the USPTO.
                                                                                                     abandoned or cancelled/expired,
                                             the trademark electronic records system                 because the applicant or registrant was                   Comment: Two commenters
                                             to reflect the abandonment. When the                    not duly diligent.                                     expressed support for the proposed
                                             trademark electronic records system is                     Comment: One commenter requested                    rules, but were concerned that the
                                             updated, the USPTO sends a computer-                    that the USPTO explain why the                         proposed changes appear to require
                                             generated notice of abandonment to the                  deadlines refer to a notice of                         registrants to check the USPTO’s
                                             correspondence address listed in the                    cancellation/expiration when the Office                electronic records every six months and
                                             application. The provision for filing a                 does not currently issue such a notice                 do not make it clear that this
                                             petition or request for reinstatement                   for the failure to file a timely § 8                   requirement is linked to the pendency
                                             within two months after the date of                     affidavit or a § 9 renewal application.                of a filed affidavit of use or excusable
                                             actual knowledge of an abandonment or                   The commenter also asked the Office to                 nonuse under § 8 or § 71 of the
                                             cancellation/expiration, but not later                  begin issuing a notice of cancellation/                Trademark Act or a renewal application
                                             than six months after the date the                      expiration for any registration that is                under § 9 of the Trademark Act. One of
                                             trademark electronic records system                     cancelled or expired for failure to file a             the commenters recommended a
                                             indicates that the application is                       timely § 8 affidavit and/or a § 9 renewal              revision to the proposed revised rules
                                             abandoned or the registration is                        application.                                           and the comments to clarify that the
                                             cancelled/expired, applies specifically                    Response: The USPTO does not issue                  requirement to check the status of a
                                             when an applicant declares that it did                  a notice of cancellation/expiration when               registration (as compared to an
                                             not receive a notice of abandonment, or                 a registrant fails to file a timely § 8                application) every six months is only
                                             a registrant declares that it did not                   affidavit and/or a § 9 renewal                         applicable during the time that the
                                             receive a notice of cancellation/                       application, nor does it plan to do so,                registrant is waiting for the USPTO to
                                             expiration or the Office did not issue                  because there is no remedy in such                     take action on a filed affidavit of use or
                                             such a notice. If the applicant or                      situations. Sections 8(a) and 71(a) of the             excusable nonuse under § 8 or § 71 or a
                                             registrant did not receive a notice that                Trademark Act, 15 U.S.C. 1058(a),                      renewal application under § 9.
                                             was issued, the applicant or registrant                 1141k(a), require an affidavit or
                                                                                                                                                               Response: The USPTO appreciates the
                                             would presumably not be aware of the                    declaration of use or excusable nonuse
                                                                                                                                                            commenters’ support of the rule changes
                                             date of the notice and the two-month                    during the sixth year after the date of
                                                                                                                                                            and concurs that the requirement to
                                             time period would start running on the                  registration, at the end of each
                                             date the applicant or registrant had                    successive ten-year period following the               check the status of a registration every
                                             actual knowledge of the abandonment                     date of registration, or within a six-                 six months is only applicable during the
                                             or cancellation/expiration.                             month grace period after each required                 time that the registrant is waiting for the
                                                However, as also discussed above, if                 period. Section 9 of the Trademark Act,                USPTO to take action on a filed affidavit
                                             an applicant or registrant does not                     15 U.S.C. 1059, provides that                          of use or excusable nonuse under § 8 or
                                             receive a notice from the USPTO                         registrations resulting from applications              § 71 or a renewal application under § 9.
                                             regarding the abandonment of its                        based on section 1 or section 44 of the                To that end, §§ 2.64(b)(1)(ii) and
                                             application, cancellation/expiration of                 Trademark Act may be renewed for                       2.146(d)(2)(ii) have been revised to
                                             its registration, or denial of some other               successive periods of ten years                        indicate that the deadlines recited
                                             request, but otherwise learns of the                    following the date of registration and                 therein apply where the registrant has
                                             abandonment, cancellation/expiration,                   that the application for renewal be filed              timely filed an affidavit of use or
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                                             or denial, the applicant or registrant                  within one year before the expiration of               excusable non-use under § 8 or § 71 or
                                             must have been duly diligent in tracking                the ten-year period or within the six-                 a renewal application under § 9.
                                             the status of its application or                        month grace period after the expiration                   Costs and Benefits: This rulemaking is
                                             registration in order to be granted                     of the ten-year period. If the § 8 or § 71             not considered to be economically
                                             revival, reinstatement, or other action by              affidavit is not filed within the statutory            significant under Executive Order 12866
                                             the Director. To be considered duly                     filing period (which includes the grace                (Sept. 30, 1993).


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                                             29406              Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations

                                             Discussion of Regulatory Changes                        and further clarify requirements in                    Rulemaking Considerations
                                                The USPTO adds § 2.64 and amends                     current §§ 2.66(c)(4) and (5), to indicate               Administrative Procedure Act: The
                                             §§ 2.66 and 2.146 to clarify the                        that non-receipt of a notice of allowance              changes in this rulemaking involve rules
                                             requirements for submitting petitions to                can be asserted only once, and to set out              of agency practice and procedure, and/
                                             revive an abandoned application and                     requirements for a multiple-basis                      or interpretive rules. See Perez v. Mortg.
                                             petitions to the Director regarding other               application; deletes current § 2.66(c)(3)–             Bankers Ass’n, 135 S. Ct. 1199, 1204
                                             matters, as described in the section-by-                (4); and redesignates current § 2.66(c)(5)             (2015) (Interpretive rules ‘‘advise the
                                             section analysis below.                                 as § 2.66(c)(3) and deletes the wording                public of the agency’s construction of
                                                The USPTO adds § 2.64 to codify the                  prior to ‘‘the applicant must file.’’ After            the statutes and rules which it
                                             requirements for requests to reinstate an               internal review, the provision in                      administers.’’ (citation and internal
                                             application that was abandoned or a                     § 2.66(c)(2)(iii) contained in the                     quotation marks omitted)); Nat’l Org. of
                                             registration that was cancelled or                      proposed rule limiting an assertion of                 Veterans’ Advocates v. Sec’y of Veterans
                                             expired, due to Office error. After                     non-receipt of the notice of allowance                 Affairs, 260 F.3d 1365, 1375 (Fed. Cir.
                                             internal review, the provisions in                      was revised for enhanced clarity.                      2001) (Rule that clarifies interpretation
                                             §§ 2.64(a)(2)(iv) and (b)(2)(iv) of the                    The USPTO amends § 2.66(d) by                       of a statute is interpretive.); Bachow
                                             proposed rule regarding the                             adding the title ‘‘Statement of Use or                 Commc’ns Inc. v. FCC, 237 F.3d 683,
                                             correspondence address were further                     Petition to Substitute a Basis May Not                 690 (D.C. Cir. 2001) (Rules governing an
                                             revised for enhanced clarity. In response               Be Filed More Than 36 Months After                     application process are procedural
                                             to comments from stakeholders,                          Issuance of the Notice of Allowance’’                  under the Administrative Procedure
                                             § 2.64(b)(1)(ii) was revised to clarify that            and rewords the paragraph for clarity.                 Act.); Inova Alexandria Hosp. v.
                                             the deadlines apply where the registrant                   The USPTO deletes current § 2.66(e).                Shalala, 244 F.3d 342, 350 (4th Cir.
                                             has timely filed an affidavit of use or                    The USPTO redesignates current                      2001) (Rules for handling appeals were
                                             excusable non-use under section 8 or 71                 § 2.66(f) as § 2.66(e), adds the title                 procedural where they did not change
                                             of the Act or a renewal application                     ‘‘Request for Reconsideration,’’ rewords               the substantive standard for reviewing
                                             under section 9 of the Act.                             the paragraph for clarity, and revises                 claims.).
                                                The USPTO amends the title of § 2.66                 paragraphs (1) and (2) to clarify the                     Accordingly, prior notice and
                                             to ‘‘Revival of applications abandoned                  requirements for requesting                            opportunity for public comment for the
                                             in full or in part due to unintentional                 reconsideration of a petition to revive                changes in this rulemaking are not
                                             delay.’’                                                that has been denied.                                  required pursuant to 5 U.S.C. 553(b) or
                                                The USPTO amends § 2.66(a) by                           The USPTO amends § 2.146(b) by                      (c), or any other law. See Perez, 135 S.
                                             adding the title ‘‘Deadline’’ and the                   deleting the wording ‘‘considered to                   Ct. at 1206 (Notice-and-comment
                                             wording ‘‘in full or in part’’ and ‘‘by not             be.’’                                                  procedures are required neither when
                                             later than,’’ amends § 2.66(a)(1) by                       The USPTO amends § 2.146(d) by                      an agency ‘‘issue[s] an initial
                                             indicating that the deadline is not later               deleting the current paragraph and                     interpretive rule’’ nor ‘‘when it amends
                                             than two months after the issue date of                 adding a sentence introducing new                      or repeals that interpretive rule.’’);
                                             the notice of abandonment in full or in                 § 2.146(d)(1)–(2)(iii), which sets out the             Cooper Techs. Co. v. Dudas, 536 F.3d
                                             part, and amends § 2.66(a)(2) by revising               deadlines for filing a petition. In                    1330, 1336–37 (Fed. Cir. 2008) (stating
                                             the deadline if the applicant did not                   response to comments from                              that 5 U.S.C. 553, and thus 35 U.S.C.
                                             receive the notice of abandonment.                      stakeholders, § 2.146(d)(2)(ii) was                    2(b)(2)(B), does not require notice and
                                                The USPTO amends § 2.66(b) by                        revised to clarify that the deadlines                  comment rulemaking for ‘‘interpretative
                                             adding the title ‘‘Petition to Revive                   apply where the registrant has timely                  rules, general statements of policy, or
                                             Application Abandoned in Full or in                     filed an affidavit of use or excusable                 rules of agency organization, procedure,
                                             Part for Failure to Respond to an Office                non-use under section 8 or 71 of the Act               or practice’’ (quoting 5 U.S.C.
                                             Action’’ and rewords the paragraph for                  or a renewal application under section                 553(b)(A))). However, the Office chose
                                             clarity and to add ‘‘in full or in part’’;              9 of the Act.                                          to seek public comment before
                                             revises § 2.66(b)(3) to clarify that (1) if                The USPTO amends § 2.146(e)(1) by                   implementing the rule to benefit from
                                             a response to the outstanding Office                    changing the wording ‘‘within fifteen                  the public’s input.
                                             action is submitted, it must be properly                days from the date of issuance’’ and                      Similarly, the 30-day delay in
                                             signed, (2) non-receipt of the same                     ‘‘within fifteen days from the date of                 effectiveness is not applicable because
                                             Office action or notification can be                    service’’ to ‘‘by not later than fifteen               this rule is not a substantive rule as the
                                             asserted only once, and (3) if the                      days after the issue date’’ and ‘‘by not               changes herein have no impact on the
                                             abandonment is after a final Office                     later than fifteen days after the date of              standard for reviewing trademark
                                             action, the response is treated as a                    service.’’ The USPTO amends                            applications. 5 U.S.C. 553(d). As
                                             request for reconsideration; and adds                   § 2.146(e)(2) by changing the wording                  discussed above, this rulemaking
                                             § 2.66(b)(3)(i)-(ii) to set out the                     ‘‘within thirty days after the date of                 involves rules of agency practice and
                                             requirements for requesting revival                     issuance’’ and ‘‘within fifteen days from              procedure, consisting of changes to the
                                             when the abandonment occurs after a                     the date of service’’ to ‘‘by not later than           deadlines and requirements for
                                             final Office action. After internal                     thirty days after the issue date’’ and ‘‘by            requesting revival, reinstatement, or
                                             review, the provision in § 2.66(b)(3)                   not later than fifteen days after the date             other action by the Director. These
                                             contained in the proposed rule limiting                 of service.’’                                          changes are procedural in nature and
                                             an assertion of non-receipt of an Office                   The USPTO deletes current § 2.146(i).               will have no substantive impact on the
                                             action was further revised for enhanced                    The USPTO redesignates current                      evaluation of a trademark application.
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                                             clarity.                                                § 2.146(j) as new § 2.146(i), deletes the              Therefore, the requirement for a 30-day
                                                The USPTO amends § 2.66(c) by                        wording ‘‘the petitioner,’’ and revises                delay in effectiveness is not applicable.
                                             adding the title ‘‘Petition to Revive                   paragraphs (1) and (2) to clarify the                     Regulatory Flexibility Act: The Deputy
                                             Application Abandoned for Failure to                    requirements for requesting                            General Counsel for General Law of the
                                             Respond to a Notice of Allowance’’;                     reconsideration of a petition to revive                USPTO has certified to the Chief
                                             adds § 2.66(c)(2)(i)–(iv) to incorporate                that has been denied.                                  Counsel for Advocacy of the Small


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                                                                Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations                                               29407

                                             Business Administration that this final                 rulemaking, and provided online access                 Mandates Reform Act of 1995. See 2
                                             rule will not have a significant                        to the rulemaking docket; (7) attempted                U.S.C. 1501 et seq.
                                             economic impact on a substantial                        to promote coordination, simplification,                  Paperwork Reduction Act: This
                                             number of small entities. See Regulatory                and harmonization across government                    rulemaking involves information
                                             Flexibility Act, 5 U.S.C. 605(b).                       agencies and identified goals designed                 collection requirements that are subject
                                                This rule amends the regulations to                  to promote innovation; (8) considered                  to review by the Office of Management
                                             provide detailed deadlines and                          approaches that reduce burdens and                     and Budget (OMB) under the Paperwork
                                             requirements for petitions to revive an                 maintain flexibility and freedom of                    Reduction Act of 1995 (44 U.S.C. 3501
                                             abandoned application and petitions to                  choice for the public; and (9) ensured                 et seq.). The collection of information
                                             the Director regarding other matters and                the objectivity of scientific and                      involved in this rule has been reviewed
                                             to codify USPTO practice regarding                      technological information and                          and previously approved by OMB under
                                             requests for reinstatement of abandoned                 processes, to the extent applicable.                   control numbers 0651–0051, 0651–0054,
                                             applications and cancelled or expired                      Executive Order 13771 (Reducing                     and 0651–0061.
                                             registrations. The rule will apply to all               Regulation and Controlling Regulatory                     Notwithstanding any other provision
                                             persons seeking a revival or                            Costs): Because this rulemaking has                    of law, no person is required to respond
                                             reinstatement of an abandoned                           been determined to be not significant for              to, nor shall a person be subject to a
                                             trademark application or registration or                purposes of Executive Order 12866, the                 penalty for failure to comply with, a
                                             other equitable action by the Director.                 requirements of Executive Order 13771                  collection of information subject to the
                                             Applicants for a trademark are not                      (Jan. 30, 2017) do not apply. See                      requirements of the Paperwork
                                             industry specific and may consist of                    Guidance Implementing Executive                        Reduction Act unless that collection of
                                             individuals, small businesses, non-                     Order 13771, Titled ‘‘Reducing                         information displays a currently valid
                                             profit organizations, and large                         Regulation and Controlling Regulatory                  OMB control number.
                                             corporations. The USPTO does not                        Costs,’’ at page 3 (OMB mem.) (April 5,
                                             collect or maintain statistics on small-                2017).                                                 List of Subjects in 37 CFR Part 2
                                             versus large-entity applicants, and this                   Executive Order 13132 (Federalism):                    Administrative practice and
                                             information would be required in order                  This rulemaking does not contain                       procedure, Trademarks.
                                             to determine the number of small                        policies with federalism implications                     For the reasons stated in the preamble
                                             entities that would be affected by the                  sufficient to warrant preparation of a                 and under the authority contained in 15
                                             rule.                                                   Federalism Assessment under Executive                  U.S.C. 1123 and 35 U.S.C. 2, as
                                                The burdens to all entities, including               Order 13132 (Aug. 4, 1999).                            amended, the Office amends part 2 of
                                             small entities, imposed by these rule                      Congressional Review Act: Under the                 title 37 as follows:
                                             changes will be minor procedural                        Congressional Review Act provisions of
                                             requirements on parties submitting                      the Small Business Regulatory                          PART 2—RULES OF PRACTICE IN
                                             petitions to revive an abandoned                        Enforcement Fairness Act of 1996 (5                    TRADEMARK CASES
                                             application and petitions to the Director               U.S.C. 801 et seq.), prior to issuing any
                                             regarding other matters and those                       final rule, the USPTO will submit a                    ■ 1. The authority citation for 37 CFR
                                             submitting requests for reinstatement of                report containing the final rule and                   Part 2 continues to read as follows:
                                             abandoned applications and cancelled                    other required information to the United                 Authority: 15 U.S.C. 1113, 15 U.S.C. 1123,
                                             or expired registrations. The changes do                States Senate, the United States House                 35 U.S.C. 2, Section 10 of Public Law 112–
                                             not impose any additional economic                      of Representatives, and the Comptroller                29, unless otherwise noted.
                                             burden in connection with the changes                   General of the Government
                                                                                                                                                            ■   2. Add § 2.64 to read as follows:
                                             as they merely clarify existing                         Accountability Office. The changes in
                                             requirements or codify existing                         this notice are not expected to result in              § 2.64 Reinstatement of applications and
                                             procedures.                                             an annual effect on the economy of 100                 registrations abandoned, cancelled, or
                                                Executive Order 12866 (Regulatory                    million dollars or more, a major increase              expired due to Office error.
                                             Planning and Review): This rulemaking                   in costs or prices, or significant adverse               (a) Request for Reinstatement of an
                                             has been determined to be not                           effects on competition, employment,                    Abandoned Application. The applicant
                                             significant for purposes of Executive                   investment, productivity, innovation, or               may file a written request to reinstate an
                                             Order 12866 (Sept. 30, 1993).                           the ability of United States-based                     application abandoned due to Office
                                                Executive Order 13563 (Improving                     enterprises to compete with foreign-                   error. There is no fee for a request for
                                             Regulation and Regulatory Review): The                  based enterprises in domestic and                      reinstatement.
                                             USPTO has complied with Executive                       export markets. Therefore, this notice is                (1) Deadline. The applicant must file
                                             Order 13563 (Jan. 18, 2011).                            not expected to result in a ‘‘major rule’’             the request by not later than:
                                             Specifically, the USPTO has, to the                     as defined in 5 U.S.C. 804(2).                           (i) Two months after the issue date of
                                             extent feasible and applicable: (1) Made                   Unfunded Mandates Reform Act of                     the notice of abandonment; or
                                             a reasoned determination that the                       1995: The changes in this rulemaking do                  (ii) Two months after the date of
                                             benefits justify the costs of the rule                  not involve a Federal intergovernmental                actual knowledge of the abandonment
                                             changes; (2) tailored the rules to impose               mandate that will result in the                        and not later than six months after the
                                             the least burden on society consistent                  expenditure by State, local, and tribal                date the trademark electronic records
                                             with obtaining the regulatory objectives;               governments, in the aggregate, of 100                  system indicates that the application is
                                             (3) selected a regulatory approach that                 million dollars (as adjusted) or more in               abandoned, where the applicant
                                             maximizes net benefits; (4) specified                   any one year, or a Federal private sector              declares under § 2.20 or 28 U.S.C. 1746
                                             performance objectives; (5) identified                  mandate that will result in the
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                                                                                                                                                            that it did not receive the notice of
                                             and assessed available alternatives; (6)                expenditure by the private sector of 100               abandonment.
                                             provided the public with a meaningful                   million dollars (as adjusted) or more in                 (2) Requirements. A request to
                                             opportunity to participate in the                       any one year, and will not significantly               reinstate an application abandoned due
                                             regulatory process, including soliciting                or uniquely affect small governments.                  to Office error must include:
                                             the views of those likely affected prior                Therefore, no actions are necessary                      (i) Proof that a response to an Office
                                             to issuing a notice of proposed                         under the provisions of the Unfunded                   action, a statement of use, or a request


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                                             29408              Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations

                                             for extension of time to file a statement                 (v) Other evidence, or factual                       a final Office action, the response is
                                             of use was timely filed and a copy of the               information supported by a declaration                 treated as a request for reconsideration
                                             relevant document;                                      under § 2.20 or 28 U.S.C. 1746,                        under § 2.63(b)(3) and the applicant
                                                (ii) Proof of actual receipt by the                  demonstrating Office error in                          must also file:
                                             Office of a response to an Office action,               cancelling/expiring the registration.                     (i) A notice of appeal to the
                                             a statement of use, or a request for                      (c) Request for Reinstatement May be                 Trademark Trial and Appeal Board
                                             extension of time to file a statement of                Construed as Petition. If an applicant or              under § 2.141 or a petition to the
                                             use and a copy of the relevant                          registrant is not entitled to                          Director under § 2.146, if permitted by
                                             document;                                               reinstatement, a request for                           § 2.63(b)(2)(iii); or
                                                (iii) Proof that the Office processed a              reinstatement may be construed as a                       (ii) A statement that no appeal or
                                             fee in connection with the filing at issue              petition to the Director under § 2.146 or              petition is being filed from the final
                                             and a copy of the relevant document;                    a petition to revive under § 2.66, if                  refusal(s) or requirement(s).
                                                (iv) Proof that the Office sent the                  appropriate. If the applicant or                          (c) Petition To Revive Application
                                             Office action or notice of allowance to                 registrant is unable to meet the                       Abandoned for Failure To Respond to a
                                             an address that is not the designated                   timeliness requirement under                           Notice of Allowance. A petition to
                                             correspondence address; or                              paragraphs (a)(1) or (b)(1) of this section            revive an application abandoned
                                                (v) Other evidence, or factual                       for filing the request, the applicant or               because the applicant did not timely
                                             information supported by a declaration                  registrant may submit a petition to the                respond to a notice of allowance must
                                             under § 2.20 or 28 U.S.C. 1746,                         Director under § 2.146(a)(5) to request a              include:
                                             demonstrating Office error in                           waiver of the rule.                                       (1) The petition fee required by § 2.6;
                                                                                                     ■ 3. Revise § 2.66 to read as follows:
                                                                                                                                                               (2) A statement, signed by someone
                                             abandoning the application.
                                                                                                                                                            with firsthand knowledge of the facts,
                                                (b) Request for Reinstatement of
                                                                                                     § 2.66 Revival of applications abandoned               that the delay in filing the statement of
                                             Cancelled or Expired Registration. The                  in full or in part due to unintentional delay.         use (or request for extension of time to
                                             registrant may file a written request to
                                                                                                        (a) Deadline. The applicant may file a              file a statement of use) on or before the
                                             reinstate a registration cancelled or
                                                                                                     petition to revive an application                      due date was unintentional; and one of
                                             expired due to Office error. There is no
                                                                                                     abandoned in full or in part because the               the following:
                                             fee for the request for reinstatement.                                                                            (i) A statement of use under § 2.88,
                                                                                                     applicant did not timely respond to an
                                                (1) Deadline. The registrant must file                                                                      signed pursuant to § 2.193(e)(1), and the
                                                                                                     Office action or notice of allowance, if
                                             the request by not later than:                                                                                 required fees for the number of requests
                                                                                                     the delay was unintentional. The
                                                (i) Two months after the issue date of                                                                      for extensions of time to file a statement
                                                                                                     applicant must file the petition by not
                                             the notice of cancellation/expiration; or                                                                      of use that the applicant should have
                                                                                                     later than:
                                                (ii) Where the registrant has timely                    (1) Two months after the issue date of              filed under § 2.89 if the application had
                                             filed an affidavit of use or excusable                  the notice of abandonment in full or in                never been abandoned;
                                             non-use under section 8 or 71 of the                    part; or                                                  (ii) A request for an extension of time
                                             Act, or a renewal application under                        (2) Two months after the date of                    to file a statement of use under § 2.89,
                                             section 9 of the Act, two months after                  actual knowledge of the abandonment                    signed pursuant to § 2.193(e)(1), and the
                                             the date of actual knowledge of the                     and not later than six months after the                required fees for the number of requests
                                             cancellation/expiration and not later                   date the trademark electronic records                  for extensions of time to file a statement
                                             than six months after the date the                      system indicates that the application is               of use that the applicant should have
                                             trademark electronic records system                     abandoned in full or in part, where the                filed under § 2.89 if the application had
                                             indicates that the registration is                      applicant declares under § 2.20 or 28                  never been abandoned;
                                             cancelled/expired, where the registrant                 U.S.C. 1746 that it did not receive the                   (iii) A statement that the applicant did
                                             declares under § 2.20 or 28 U.S.C. 1746                 notice of abandonment.                                 not receive the notice of allowance and
                                             that it did not receive the notice of                      (b) Petition To Revive Application                  a request to cancel said notice and issue
                                             cancellation/expiration or where the                    Abandoned in Full or in Part for Failure               a new notice. If the applicant asserts
                                             Office did not issue a notice.                          To Respond to an Office Action. A                      that the unintentional delay in
                                                (2) Requirements. A request to                       petition to revive an application                      responding is based on non-receipt of
                                             reinstate a registration cancelled/                     abandoned in full or in part because the               the notice of allowance, the applicant
                                             expired due to Office error must                        applicant did not timely respond to an                 may not assert non-receipt of the notice
                                             include:                                                Office action must include:                            of allowance in a subsequent petition; or
                                                (i) Proof that an affidavit or                          (1) The petition fee required by § 2.6;                (iv) In a multiple-basis application, an
                                             declaration of use or excusable nonuse,                    (2) A statement, signed by someone                  amendment, signed pursuant to
                                             a renewal application, or a response to                 with firsthand knowledge of the facts,                 § 2.193(e)(2), deleting the section 1(b)
                                             an Office action was timely filed and a                 that the delay in filing the response on               basis and seeking registration based on
                                             copy of the relevant document;                          or before the due date was                             section 1(a) and/or section 44(e) of the
                                                (ii) Proof of actual receipt by the                  unintentional; and                                     Act.
                                             Office of an affidavit or declaration of                   (3) A response to the Office action,                   (3) The applicant must file any further
                                             use or excusable nonuse, a renewal                      signed pursuant to § 2.193(e)(2), or a                 requests for extensions of time to file a
                                             application, or a response to an Office                 statement that the applicant did not                   statement of use under § 2.89 that
                                             action and a copy of the relevant                       receive the Office action or the                       become due while the petition is
                                             document;                                               notification that an Office action issued.             pending, or file a statement of use under
                                                (iii) Proof that the Office processed a              If the applicant asserts that the
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                                                                                                                                                            § 2.88.
                                             fee in connection with the filing at issue              unintentional delay is based on non-                      (d) Statement of Use or Petition To
                                             and a copy of the relevant document;                    receipt of an Office action or                         Substitute a Basis May Not Be Filed
                                                (iv) Proof that the Office sent the                  notification, the applicant may not                    More Than 36 Months After Issuance of
                                             Office action to an address that is not                 assert non-receipt of the same Office                  the Notice of Allowance. In an
                                             the designated correspondence address;                  action or notification in a subsequent                 application under section 1(b) of the
                                             or                                                      petition. When the abandonment is after                Act, the Director will not grant a


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                                                                Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations                                               29409

                                             petition under this section if doing so                 officer or general partner of a                        § 2.119. No further document relating to
                                             would permit an applicant to file a                     partnership), or a practitioner qualified              the petition may be filed.
                                             statement of use, or a petition under                   to practice under § 11.14 of this chapter,                 (2) A petition from an interlocutory
                                             § 2.35(b) to substitute a basis, more than              in accordance with the requirements of                 order of the Trademark Trial and
                                             36 months after the issue date of the                   § 2.193(e)(5). When facts are to be                    Appeal Board must be filed by not later
                                             notice of allowance under section                       proved on petition, the petitioner must
                                                                                                                                                            than thirty days after the issue date of
                                             13(b)(2) of the Act.                                    submit proof in the form of verified
                                               (e) Request for Reconsideration. If the                                                                      the order from which relief is requested.
                                                                                                     statements signed by someone with
                                             Director denies a petition to revive                    firsthand knowledge of the facts to be                 Any brief in response to the petition
                                             under this section, the applicant may                   proved, and any exhibits.                              must be filed, with any supporting
                                             request reconsideration, if:                               (d) Unless a different deadline is                  exhibits, by not later than fifteen days
                                               (1) The applicant files the request by                specified elsewhere in this chapter, a                 after the date of service of the petition.
                                             not later than:                                         petition under this section must be filed              Petitions and responses to petitions, and
                                               (i) Two months after the issue date of                by not later than:                                     any documents accompanying a petition
                                             the decision denying the petition; or                      (1) Two months after the issue date of              or response under this subsection, must
                                               (ii) Two months after the date of                     the action, or date of receipt of the                  be served on every adverse party
                                             actual knowledge of the decision                        filing, from which relief is requested; or             pursuant to § 2.119.
                                             denying the petition and not later than                    (2) Where the applicant or registrant                   (f) An oral hearing will not be held on
                                             six months after the issue date of the                  declares under § 2.20 or 28 U.S.C. 1746                a petition except when considered
                                             decision where the applicant declares                   that it did not receive the action, or                 necessary by the Director.
                                             under § 2.20 or 28 U.S.C. 1746 that it                  where no action was issued, the petition
                                             did not receive the decision; and                                                                                  (g) The mere filing of a petition to the
                                                                                                     must be filed by not later than:
                                               (2) The applicant pays a second                                                                              Director will not act as a stay in any
                                                                                                        (i) Two months of actual knowledge
                                             petition fee under § 2.6.                               of the abandonment of an application                   appeal or inter partes proceeding that is
                                             ■ 4. Revise § 2.146 to read as follows:                 and not later than six months after the                pending before the Trademark Trial and
                                                                                                     date the trademark electronic records                  Appeal Board, nor stay the period for
                                             § 2.146   Petitions to the Director.                                                                           replying to an Office action in an
                                                                                                     system indicates that the application is
                                                (a) Petition may be taken to the                                                                            application, except when a stay is
                                                                                                     abandoned in full or in part;
                                             Director:                                                                                                      specifically requested and is granted or
                                                (1) From any repeated or final formal                   (ii) Where the registrant has timely
                                                                                                     filed an affidavit of use or excusable                 when §§ 2.63(a) and (b) and 2.65(a) are
                                             requirement of the examiner in the ex                                                                          applicable to an ex parte application.
                                             parte prosecution of an application if                  non-use under Section 8 or 71 of the
                                             permitted by § 2.63(a) and (b);                         Act, or a renewal application under                        (h) Authority to act on petitions, or on
                                                (2) In any case for which the Act of                 Section 9 of the Act, two months after                 any petition, may be delegated by the
                                             1946, or Title 35 of the United States                  the date of actual knowledge of the                    Director.
                                             Code, or this Part of Title 37 of the Code              cancellation/expiration of a registration
                                                                                                                                                                (i) If the Director denies a petition, the
                                             of Federal Regulations specifies that the               and not later than six months after the
                                                                                                     date the trademark electronic records                  petitioner may request reconsideration,
                                             matter is to be determined directly or                                                                         if:
                                             reviewed by the Director;                               system indicates that the registration is
                                                (3) To invoke the supervisory                        cancelled/expired; or                                      (1) The petitioner files the request by
                                             authority of the Director in appropriate                   (iii) Two months after the date of                  not later than:
                                             circumstances;                                          actual knowledge of the denial of                          (i) Two months after the issue date of
                                                (4) In any case not specifically                     certification of an international                      the decision denying the petition; or
                                             defined and provided for by this Part of                application under § 7.13(b) and not later
                                                                                                     than six months after the trademark                        (ii) Two months after the date of
                                             Title 37 of the Code of Federal
                                                                                                     electronic records system indicates that               actual knowledge of the decision
                                             Regulations; or
                                                (5) In an extraordinary situation,                   certification is denied.                               denying the petition and not later than
                                             when justice requires and no other party                   (e)(1) A petition from the grant or                 six months after the issue date of the
                                             is injured thereby, to request a                        denial of a request for an extension of                decision where the petitioner declares
                                             suspension or waiver of any                             time to file a notice of opposition must               under § 2.20 or 28 U.S.C. 1746 that it
                                             requirement of the rules not being a                    be filed by not later than fifteen days                did not receive the decision; and
                                             requirement of the Act of 1946.                         after the issue date of the grant or denial                (2) The petitioner pays a second
                                                (b) Questions of substance arising                   of the request. A petition from the grant              petition fee under § 2.6.
                                             during the ex parte prosecution of                      of a request must be served on the
                                                                                                                                                              Dated: June 22, 2017.
                                             applications, including, but not limited                attorney or other authorized
                                             to, questions arising under sections 2, 3,              representative of the potential opposer,               Joseph D. Matal,
                                             4, 5, 6, and 23 of the Act of 1946, are                 if any, or on the potential opposer. A                 Performing the Functions and Duties of the
                                             not appropriate subject matter for                      petition from the denial of a request                  Under Secretary of Commerce for Intellectual
                                             petitions to the Director.                              must be served on the attorney or other                Property and Director of the United States
                                                (c) Every petition to the Director shall             authorized representative of the                       Patent and Trademark Office.
                                             include a statement of the facts relevant               applicant, if any, or on the applicant.                [FR Doc. 2017–13519 Filed 6–28–17; 8:45 am]
                                             to the petition, the points to be                       Proof of service of the petition must be               BILLING CODE 3510–16–P
                                             reviewed, the action or relief requested,               made as provided by § 2.119. The
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                                             and the fee required by § 2.6. Any brief                potential opposer or the applicant, as
                                             in support of the petition shall be                     the case may be, may file a response by
                                             embodied in or accompany the petition.                  not later than fifteen days after the date
                                             The petition must be signed by the                      of service of the petition and must serve
                                             petitioner, someone with legal authority                a copy of the response on the petitioner,
                                             to bind the petitioner (e.g., a corporate               with proof of service as provided by


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Document Created: 2018-11-14 10:17:25
Document Modified: 2018-11-14 10:17:25
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective on July 8, 2017.
ContactCatherine Cain, Office of the Deputy Commissioner for Trademarks Examination Policy, by email at [email protected] or by telephone at (571) 272-8946.
FR Citation82 FR 29401 
RIN Number0651-AC41
CFR AssociatedAdministrative Practice and Procedure and Trademarks

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