1211    Abandonment During Appeal

37 CFR § 2.68  Express abandonment (withdrawal) of application.

    • (a) Written document required . An applicant may expressly abandon an application by filing a written request for abandonment or withdrawal of the application, signed by the applicant, someone with legal authority to bind the applicant (e.g., a corporate officer or general partner of a partnership), or a practitioner qualified to practice under § 11.14 of this chapter, in accordance with the requirements of § 2.193(e)(2).
    • (b) Rights in the mark not affected . Except as provided in § 2.135, the fact that an application has been expressly abandoned shall not, in any proceeding in the Office, affect any rights that the applicant may have in the mark in the abandoned application.

During an ex parte appeal to the Board, the applicant may expressly abandon its involved application by filing in the Office a written statement of abandonment or withdrawal of the application. The abandonment or withdrawal must be signed by the applicant or its attorney or other authorized representative. [ Note 1.]

The express abandonment, during an ex parte appeal to the Board, of the applicant’s involved application will not, in any proceeding in the Office, affect any rights that the applicant may have in the mark that is the subject of the abandoned application. [ Note 2.]

In contrast, after the commencement of an opposition, concurrent use, or interference proceeding, if the applicant files a written abandonment of its involved application or mark without the written consent of every adverse party to the proceeding, judgment will be entered against the applicant. [ Note 3.] TBMP § 602.01 and TBMP § 603.

NOTES:

 1.   37 CFR § 2.68.

 2.   37 CFR § 2.68. See also Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812, 2 USPQ2d 1264, 1267 (1st Cir. 1987). Cf. In re Honeywell Inc., 8 USPQ2d 1600, 1601-02 (TTAB 1988) (preclusive effect of prior final judgment arising out of an ex parte case); Flowers Industries Inc. v. Interstate Brands Corp., 5 USPQ2d 1580, 1583 (TTAB 1987); Lukens Inc. v. Vesper Corp., 1 USPQ2d 1299, 1301 (TTAB 1986), aff’d, 831 F.2d 306 (Fed. Cir. 1987).

 3.   37 CFR § 2.135.