Filing the Notice of Appeal with the Trademark Trial and Appeal Board (TTAB) is the very first step in the trademark appeal process. You may only file the Notice of Appeal after an examining attorney at the United States Patent and Trademark Office (USPTO) issues a final office action indicating that the refusal to register your trademark has been made final. The purpose of filing the Notice of Appeal is to preserve your right to attempt to convince the TTAB (through the submission of competent evidence and persuasive arguments) that the examining attorney’s final refusal to register your mark is improper and should be overturned. In other words, it informs the TTAB of your intent to challenge the examining attorney’s reasons for rejecting your trademark application.
When Must I File the Notice of Appeal?
There are strict non-extendible deadlines for filing the Notice of Appeal with the TTAB. If you filed your trademark application directly with the USPTO, then you must file the Notice of Appeal within three months of the date the final office action was issued (or six months if you timely filed a Request for an Extension of Time to File a Response). On the other hand, if you filed for an extension of protection of your trademark in the United States through WIPO in accordance with the Madrid Protocol, then you must file the Notice of Appeal within six months of the date the final office action was issued. If you fail to file the Notice of Appeal by the applicable deadline, your application will go abandoned and you will have to begin the trademark registration process from the very beginning (unless you’re eligible to file a Petition to Revive).
How Do I File the Notice of Appeal?
The Notice of Appeal must be filed and paid for through the ESTTA system. The TTAB provides an easy-to-follow online form for filing the Notice of Appeal. In fact, it’s so simple that all you will need to successfully complete and submit the form is (1) the serial number of your trademark application, and (2) a credit or debit card with which to pay the USPTO filing fee. I’m not joking when I say that preparing and filing the Notice of Appeal will probably take you less than ten minutes.
What Happens After I File It?
After you file the Notice of Appeal, the TTAB will formally acknowledge and institute the trademark appeal. The TTAB will then do one of the following two things:
- If you did not separately file a Request for Reconsideration concurrently with the Notice of Appeal, the TTAB will send out the appeal proceeding schedule that both you and the examining attorney must follow.
- If you did separately file a Request for Reconsideration concurrently with the Notice of Appeal, then the TTAB will suspend (put on hold) the appeal and remand your trademark application back to the examining attorney for review of the Request for Reconsideration. If the examining attorney denies the Request for Reconsideration, then the TTAB will remove the appeal from suspension and send out the appeal proceeding schedule. On the other hand, if the examining attorney withdraws the final refusal to register your trademark after reviewing the Request for Reconsideration, then the TTAB will dismiss the appeal as moot and your application will either be published for opposition or approved for registration on either the Principal Register or Supplemental Register (depending on nature of your trademark and where your application is in the registration process).
Questions Regarding the Notice of Appeal?
I’m experienced US trademark attorney Morris Turek. If you’ve received a final office action from the USPTO and are now looking for a knowledgeable and dependable trademark attorney to submit the Notice of Appeal by the deadline, I would be happy to assist you. Just give me a call at (314) 749-4059, send me an email (morris@yourtrademarkattorney.com), or fill out the contact form located near the bottom of this page. I look forward to hearing from you soon.