110.01 Certificate of Mailing – In General
37 CFR § 2.197 Certificate of mailing or transmission.
- (a) Except in the cases enumerated in paragraph (a)(2) of this section, correspondence required to be filed in the Office within a set period of time will be considered as being timely filed if the procedure described in this section is followed. The actual date of receipt will be used for all other purposes.
- (1) Correspondence will be considered as being timely filed if:
- (i) The correspondence is mailed or transmitted prior to expiration of the set period of time by being:
- (A) Addressed as set out in § 2.190 and deposited with the U.S. Postal Service with sufficient postage as first class mail; or
- (B) Transmitted by facsimile to the Office in accordance with § 2.195(c); and
- (ii) The correspondence includes a certificate for each piece of correspondence stating the date of deposit or transmission. The person signing the certificate should have reasonable basis to expect that the correspondence would be mailed or transmitted on or before the date indicated.
- (i) The correspondence is mailed or transmitted prior to expiration of the set period of time by being:
- (2) The procedure described in paragraph (a)(1) of this section does not apply to:
- (i) Applications for the registration of marks under 15 U.S.C. 1051 or 1126; and
- (ii) Madrid-related correspondence filed under § 7.11, § 7.21, § 7.14, § 7.23, § 7.24 or § 7.31.
- (1) Correspondence will be considered as being timely filed if:
- (b) In the event that correspondence is considered timely filed by being mailed or transmitted in accordance with paragraph (a) of this section, but not received in the Office, and an application is abandoned, a registration is cancelled or expired, or a proceeding is dismissed, terminated, or decided with prejudice, the correspondence will be considered timely if the party who forwarded such correspondence:
- (1) Informs the Office of the previous mailing or transmission of the correspondence within two months after becoming aware that the Office has no evidence of receipt of the correspondence;
- (2) Supplies an additional copy of the previously mailed or transmitted correspondence and certificate; and
- (3) Includes a statement which attests on a personal knowledge basis or to the satisfaction of the Director to the previous timely mailing or transmission. If the correspondence was sent by facsimile transmission, a copy of the sending unit’s report confirming transmission may be used to support this statement.
- (c) The Office may require additional evidence to determine whether the correspondence was timely filed.
The certificate of mailing procedure discussed below applies only to submissions filed in paper form. For information regarding the filing of submissions via the Internet using ESTTA, see TBMP § 110.09.
Except in certain instances, specified in 37 CFR § 2.197(a), as amplified by 37 CFR § 2.195(c), correspondence required to be filed within a set period of time will be considered as being timely filed, even though the correspondence is not received by the Office until after the expiration of the set period, if, prior to the expiration of the set period, (1) the correspondence is mailed to the Office by first-class mail, with the proper address, or (for correspondence which is permitted to be filed by fax) is transmitted to the Office by fax, in accordance with 37 CFR § 2.195(c), and (2) includes a certificate of mailing or transmission which meets the requirements specified in 37 CFR § 2.197(a). [ Note 1.]
In effect, the certificate of mailing or transmission procedure permits certain types of correspondence, as specified in 37 CFR § 2.197(a) and 37 CFR § 2.195(c), to be sent to the Office by first-class mail, or by fax transmission, even on the due date for the correspondence and still be considered timely, notwithstanding the fact that the mailed correspondence will not be received in the Office until after the due date, or that the fax transmission may not, because of USPTO equipment failure or maintenance requirements, be completed until the next day. [ Note 2.]
However, the Office, in its discretion, may require additional evidence to determine if correspondence which bears a certificate of mailing or a certificate of transmission was timely filed, i.e., was mailed or transmitted on the date stated in the certificate. [ Note 3.]
The certificate of mailing procedure applies to the filing of all types of correspondence in Board proceedings.
The certificate of transmission procedure is available in Board proceedings only for the filing of a notice of ex parte appeal to the Board. [ Note 4.] See TBMP § 107 (How and Where to File Papers and Fees).
NOTES:
1. 37 CFR § 2.197(a); In re LS Bedding, 16 USPQ2d 1451, 1452-53 (Comm’r 1990) (certificate of mailing procedure is used to determine timeliness, while the actual receipt date is used for all other purposes, such as an application filing date). See Hornblower & Weeks Inc. v. Hornblower & Weeks Inc., 60 USPQ2d 1733, 1734 n.2 (TTAB 2001) (no certificate of mailing).
2. See Luemme Inc. v. D.B. Plus Inc., 53 USPQ2d 1758, 1759 n.1 (TTAB 1999) (motion to extend filed by a certificate of mailing dated next business day was timely where the period closed on the preceding day, a Sunday).
3. 37 CFR § 2.197(c); S. Industries Inc. v. Lamb-Weston Inc., 45 USPQ2d 1293, 1295 (TTAB 1997) (where prima facie proof of certificate of mailing is rebutted by other evidence, person signing certificate must submit an affidavit specifying the date of actual deposit); In re Klein, 6 USPQ2d 1547, 1551-52 (Comm’r 1987), aff’d sub nom. Klein v. Peterson, 696 F. Supp. 695, 8 USPQ2d 1434 (D.D.C. 1988), aff’d 866 F.2d 412, 9 USPQ2d 1558 (Fed. Cir. 1989).