903.04 Time For Filing Civil Action, Cross-Action
Trademark Act § 21(b)(1), 15 U.S.C. § 1071(b)(1) Whenever a person authorized by subsection (a) of this section to appeal to the United States Court of Appeals for the Federal Circuit is dissatisfied with the decision of the Director or Trademark Trial and Appeal Board, said person may, unless appeal has been taken to said United States Court of Appeals for the Federal Circuit, have remedy by a civil action if commenced within such time after such decision, not less than sixty days, as the Director appoints or as provided in subsection (a) of this section. . . .
- (d) Time for appeal or civil action.
- (1) The time for filing the notice of appeal to the U.S. Court of Appeals for the Federal Circuit (paragraph (b) of this section), or for commencing a civil action (paragraph (c) of this section), is two months from the date of the decision of the Trademark Trial and Appeal Board or the Director, as the case may be. If a request for rehearing or reconsideration or modification of the decision is filed within the time specified in §§ 2.127(b), 2.129(c) or 2.144, or within any extension of time granted thereunder, the time for filing an appeal or commencing a civil action shall expire two months after action on the request. In inter partes cases, the time for filing a cross-action or a notice of a cross-appeal expires (i) 14 days after service of the notice of appeal or the summons and complaint; or (ii) two months from the date of the decision of the Trademark Trial and Appeal Board or the Director, whichever is later.
- (2) The times specified in this section in days are calendar days. The times specified herein in months are calendar months except that one day shall be added to any two-month period which includes February 28. If the last day of time specified for an appeal, or commencing a civil action falls on a Saturday, Sunday or Federal holiday in the District of Columbia, the time is extended to the next day which is neither a Saturday, Sunday nor a Federal holiday.
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- (e) Extensions of time to commence judicial review. The Director may extend the time for filing an appeal or commencing a civil action (1) for good cause shown if requested in writing before the expiration of the period for filing an appeal or commencing a civil action, or (2) upon written request after the expiration of the period for filing an appeal or commencing a civil action upon a showing that the failure to act was the result of excusable neglect.
The time for commencing a civil action under Trademark Act § 21(b), 15 U.S.C. § 1071(b), is two months from the date of the Board decision of which review is sought. [ Note 1.] When the two-month period includes February 28, an additional day is added. [ Note 2.] Likewise, if the last day for filing an appeal falls on a Saturday, Sunday or Federal holiday in the District of Columbia, then the time is extended to the next day which is not a Saturday, Sunday or Federal holiday. [ Note 3.] A civil action is commenced by the filing of a complaint with the court. [ Note 4.] When the Board enters judgment in favor of a Trademark Act § 1(b), 15 U.S.C. § 1051(b), applicant subject to that party’s establishment of constructive use (see TBMP § 901.02(b)), the time for commencing a civil action for review of the Board’s decision runs from the date of the entry of judgment subject to establishment of constructive use. [ Note 5.]
If a request for rehearing, reconsideration, or modification of the Board’s decision is filed within the time specified in 37 CFR § 2.127(b), 37 CFR § 2.129(c), or 37 CFR § 2.144, or within any extension of time granted thereunder, the time for commencing a civil action expires two months after action on the request. [ Note 6.] When the two-month period includes February 28, an additional day is added. [ Note 7.] Likewise, if the last day for filing an appeal falls on a Saturday, Sunday or Federal holiday in the District of Columbia, then the time is extended to the next day which is not a Saturday, Sunday or Federal holiday. [ Note 8.] Because the Board’s rules do not permit a second or subsequent request for reconsideration, only a timely first request for reconsideration or modification will toll the time for commencing a civil action. In an inter partes case, the time for filing a cross-action expires (1) 14 days after service of the summons and complaint, or (2) two months from the date of the Board decision which is the subject of the civil action, whichever is later. [ Note 9.]
If a written request to extend the time for commencing a civil action is filed before the expiration of the period for commencing a civil action, the USPTO may grant the request on a showing of good cause. If the request is not filed until after the expiration of the period for commencing a civil action, the USPTO may grant the request only on a showing that the failure to act was the result of excusable neglect. [ Note 10.] A request for an extension of time to file an appeal should be directed to the attention of the Office of the Solicitor at the following address:
Mail Stop 8
Office of the Solicitor
U.S. Patent and Trademark Office
P.O. Box 1450
Alexandria, Virginia 22313-1450
NOTES:
1. Trademark Act § 21(b)(1), 15 U.S.C. § 1071 (b) (1) (60 days); 37 CFR § 2.145(d)(1) (two months). See also Tovaritch Spirits International S.A. v. Luxco Inc., 100 USPQ2d 1543, 1545 (E.D. Mo. 2011) (clear that the time a party has to appeal a TTAB decision is two calendar months, not sixty days).
4. Fed. R. Civ. P. 3.
5. 37 CFR § 2.129(d); Zirco Corp. v. American Telephone and Telegraph Co., 21 USPQ2d 1542, 1544-45 (TTAB 1991) (judgment entered in favor of applicant subject to applicant’s establishment of constructive use).