120    Access to Files

37 CFR § 2.27(d)  Except as provided in paragraph (e) of this section, the official records of applications and all proceedings relating thereto are available for public inspection and copies of the documents may be furnished upon payment of the fee required by § 2.6.

37 CFR § 2.27(e)  Anything ordered to be filed under seal pursuant to a protective order issued or made by any court or by the Trademark Trial and Appeal Board in any proceeding involving an application or a registration shall be kept confidential and shall not be made available for public inspection or copying unless otherwise ordered by the court or the Board, or unless the party protected by the order voluntarily discloses the matter subject thereto. When possible, only confidential portions of filings with the Board shall be filed under seal.

120.01    Non - confidential Files

Except for materials filed under seal pursuant to a protective order or agreement, all pending Board proceeding files and exhibits thereto are available for public inspection and copying. [ Note 1.] Most Board records since 2001 are electronic. The electronic records of the Board are accessible via TTABVUE on the Board’s home page of the USPTO website at http://ttabvue.uspto.gov /. The electronic record of applications and registrations, which are the subject matter of pending proceedings before the Board, and extensions of time to oppose are accessible via the Internet at http://tsdr.uspto.gov/.

Board records submitted prior to approximately 2001 are kept in paper. An individual who wishes to inspect or copy one of the paper files that are located at the Board or one of the USPTO Warehouses may place a request for access to a particular Board file with the Trademark Assistance Center, located at 600 Dulany Street, Madison East Concourse Level, Room C55, Alexandria, Virginia. Requests for access may be made using the self-service electronic File Ordering System or by logging such in the Public Access Log Book located in the Trademark Assistance Center public access area. A Trademark Assistance Center employee is available to assist customers desiring to place requests for access to Board files.

An individual who wishes to inspect or copy a paper file located at the Board may also contact a Board Customer Service Representative at (571) 272-8500 or (800) 786-9199 (toll free), and ask that the file be located. When the file has been located, the Board will deliver the file to the Trademark Assistance Center and will notify the customer that the file has been delivered and is available for access at the Trademark Assistance Center, 600 Dulany Street, Madison East Concourse Level, Room C55, Alexandria, Virginia.

Paper files which have been ordered and received for customers will be held at the Trademark Assistance Center customer service window for a period of two weeks to enable the customer to return to inspect or copy the ordered files. Customers may copy pages from the files using the photocopier designated for public use which is located in the Trademark Assistance Center public access area by using a magnetic card to charge the fees for the copies. The magnetic card, known as a "copy card" may be purchased from the cashier at the USPTO Public Search Facility, located at 600 Dulany Street, Madison East, 1st Floor, Alexandria, Virginia.

Paper files or portions thereof may not be taken from the premises of the Trademark Assistance Center and a person who removes papers from a file for copying must return the papers to the file in their proper order.

For information concerning access to the paper files of cases that are on appeal from a decision of the Board, see TBMP § 904.

NOTES:

 1.   See 37 CFR § 2.27.

120.02    Confidential Materials

Materials filed with the Board under seal pursuant to the Board’s standard protective order, or a protective agreement signed by the parties, or a protective order entered by the Board or any court and filed in compliance with TBMP § 412. 04, will be kept confidential and will not be made available for public inspection or copying unless otherwise ordered by the court or the Board, or unless the party protected by the order voluntarily discloses the matter subject thereto. [ Note 1.] These materials may be inspected only by those individuals who are entitled, under the terms of the protective order, to have access to the protected information. [ Note 2.] See TBMP § 412. (Protective Orders), TBMP § 526 (Motion for Protective Order), TBMP § 703.01(p) (Confidential or Trade Secret Material). To be handled as confidential, and kept out of the public record, confidential materials must be so designated at the time of filing. Paper or electronic submissions in Board proceedings which are not properly designated as confidential will be placed in the Board’s public records, available on the Internet.

Electronic filing using ESTTA is preferred for submissions containing confidential material. When using ESTTA, the filer should select "CONFIDENTIAL Opposition, Cancellation or Concurrent Use" under "File Documents in a Board Proceeding." [ Note 3.] Filings made using this option will not be made available for public viewing, although an entry will be made on the publicly-available docket sheet in TTABVUE.

If a paper submission contains confidential material, it must be submitted under separate cover. Both the submission and its cover must be marked confidential and must identify the case number and the parties. Paper submissions are scanned into TTABVUE and designated "confidential." After scanning and designating as "confidential," the Board retains the confidential paper submissions for a short period of time before disposing of the confidential paper submissions in an appropriate manner.

The parties are strongly discouraged from submitting materials which contain the personally identifiable information of an individual (e.g., account numbers, social security number, home addresses, and home phone numbers). The parties are also discouraged from submitting unnecessary information (e.g., payroll) that may lead to identity theft or other fraudulent use of such information, even where such information concerns a business but may not be addressed in either the Board’s standard protective order or a stipulated protective agreement between the parties. If such information is embedded in the materials being submitted, such privacy information is to be redacted.

Except for materials filed under seal pursuant to a protective order or agreement, all Board proceeding files and exhibits thereto are available for public inspection and copying. Therefore, only the particular discovery responses, exhibits, deposition transcript pages, or those portions of a brief, pleading or motion that disclose confidential information should be filed under seal pursuant to a protective order. [ Note 4.] A good practice would be to clearly mark as "confidential" each page of a submission that contains such matter.

However filed, if a party submits any brief, pleading, motion or other such filing containing confidential information under seal, the party must also submit for the public record a redacted version of said papers. [ Note 5.]

NOTES:

 1.   See 37 CFR § 2.116(g)  ("The Trademark Trial and Appeal Board’s standard protective order is applicable during disclosure, discovery and at trial in all opposition, cancellation, interference and concurrent use registration proceedings, unless the parties, by stipulation approved by the Board, agree to an alternative order, or a motion by a party to use an alternative order is granted by the Board. The standard protective order is available at the Office’s Web site, or upon request, a copy will be provided.").

 2.   See 37 CFR § 2.27(e); 37 CFR § 2.120(f); 37 CFR § 2.125(e).

 3.   See http://estta.uspto.gov/filing-type.jsp. This option is only available for filing documents in an existing opposition, cancellation, or concurrent use proceeding. Since a notice of opposition or petition for cancellation provides only notice of a claim and general facts in support of it, there should rarely, if ever, be occasion to file confidential material with a notice or petition. The existence of the proceeding itself will not be treated as confidential.

 4.   See 37 CFR § 2.126(c); Duke University v. Haggar Clothing Co., 54 USPQ2d 1443, 1445 (TTAB 2000).

 5.   See 37 CFR § 2.126(c).

120.03    Files of Terminated Proceedings

When an inter partes proceeding has been finally determined, i.e., when the proceeding is over (including the resolution of any direct court review), the Office takes certain further steps based on the final decision, including those steps necessary to give effect to the decision. This process is referred to as the "termination" of the proceeding. See TBMP § 806 (Termination of Proceeding).

The official records for all Board proceedings are now kept electronically. The electronic files of all Board proceedings continue to remain available online through TTABVUE after termination.

Pursuant to the National Archives retention schedule, terminated paper inter partes proceeding files that result in a final decision by the Board, e.g., a granted motion for summary judgment or motion to dismiss, or a final decision on the merits, are transferred to a USPTO warehouse for 3 years, then to the Washington National Records Center in Suitland, Maryland for 27 years, and then to the National Archives for permanent retention. All other terminated paper proceedings are transferred to a USPTO warehouse for 3 years and then transferred to the Washington National Records Center in Suitland, Maryland, where they remain for 27 years before destruction. The paper files of existing registrations are also stored at the warehouse for as long as they remain registered. The paper files of cancelled and expired registrations are destroyed three years after the date of cancellation or expiration; the paper files of abandoned applications are destroyed three years after the date of abandonment. In addition, the paper files of terminated opposition proceedings numbered from 30,000 through 53,999, and of terminated cancellation proceedings numbered from 1 through 9399, have been destroyed.

An individual who wishes to inspect or copy a paper file stored by the Office in a USPTO warehouse may place a request for access to a particular file with the Trademark Assistance Center, located at 600 Dulany Street, Madison East Concourse Level, Room C55, Alexandria, Virginia. Requests for access may be made using the self-service electronic File Ordering System or by logging them in the Public Access Log Book located in the Trademark Assistance Center public access area. A Trademark Assistance Center employee is available to assist customers desiring to place requests for access to Board files.

Paper files which have been ordered and received for customers will be held at the Trademark Assistance Center customer service window for a period of two weeks to enable the customer to return to inspect or copy the ordered files. Customers may copy pages from the files using the photocopier designated for public use which is located in the Trademark Assistance Center public access area by using a prepaid magnetic card to charge the fees for the copies. The magnetic card, known as a "copy card" may be purchased from the cashier at the USPTO Public Search Facility, which is located at 600 Dulany Street, Madison East, 1st Floor, Alexandria, Virginia. The file may not be removed from the premises of the Trademark Assistance Center, and a person who removes papers from a file for copying must return the papers to the file in their proper order. [ Note 1.]

NOTES:

 1.   See TMEP § 109.02.