109 Filing Date
37 CFR § 2.195 Receipt of trademark correspondence.
- (a) Date of receipt and Priority Mail Express® date of deposit. Trademark correspondence received in the Office is given a filing date as of the date of receipt except as follows:
- (1) The Office is not open for the filing of correspondence on any day that is a Saturday, Sunday, or Federal holiday within the District of Columbia. Except for correspondence transmitted electronically under paragraph (a)(2) of this section or transmitted by facsimile under paragraph (a)(3) of this section, no correspondence is received in the Office on Saturdays, Sundays, or Federal holidays within the District of Columbia.
- (2) Trademark-related correspondence transmitted electronically will be given a filing date as of the date on which the Office receives the transmission.
- (3) Correspondence transmitted by facsimile will be given a filing date as of the date on which the complete transmission is received in the Office unless that date is a Saturday, Sunday, or Federal holiday within the District of Columbia, in which case the filing date will be the next succeeding day that is not a Saturday, Sunday, or Federal holiday within the District of Columbia.
- (4) Correspondence filed in accordance with § 2.198 will be given a filing date as of the date of deposit as Priority Mail Express® with the United States Postal Service.
- (b) Correspondence delivered by hand. Correspondence may be delivered by hand during hours the Office is open to receive correspondence.
- (c) Facsimile transmission. Except in the cases enumerated in paragraph (d) of this section, correspondence, including authorizations to charge a deposit account, may be transmitted by facsimile. The receipt date accorded to the correspondence will be the date on which the complete transmission is received in the Office, unless that date is a Saturday, Sunday, or Federal holiday within the District of Columbia. See §2.196. To facilitate proper processing, each transmission session should be limited to correspondence to be filed in a single application, registration or proceeding before the Office. The application serial number, registration number, or proceeding number should be entered as a part of the sender’s identification on a facsimile cover sheet.
- (d) Facsimile transmissions are not permitted and if submitted, will not be accorded a date of receipt, in the following situations:
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- (3) Correspondence to be filed with the Trademark Trial and Appeal Board, except notices of ex parte appeal;
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- (e) Interruptions in U.S. Postal Service.
- (1) If the Director designates a postal service interruption or emergency within the meaning of 35 U.S.C. 21(a), any person attempting to file correspondence by Priority Mail Express® Post Office to Addressee" service who was unable to deposit the correspondence with the United States Postal Service due to the interruption or emergency may petition the Director to consider such correspondence as filed on a particular date in the Office.
- (2) The petition must:
- (i) Be filed promptly after the ending of the designated interruption or emergency;
- (ii) Include the original correspondence or a copy of the original correspondence; and
- (iii) Include a statement that the correspondence would have been deposited with the United States Postal Service on the requested filing date but for the designated interruption or emergency in ‘‘Priority Mail Express®’’ service; and that the correspondence attached to the petition is the original correspondence or a true copy of the correspondence originally attempted to be deposited as Priority Mail Express® on the requested filing date.
- (3) Paragraphs (e)(1) and (e)(2) of this section do not apply to correspondence that is excluded from the Priority Mail Express® procedure pursuant to § 2.198(a)(1)
The cover sheet for correspondence transmitted electronically through ESTTA is automatically affixed with the date the Office receives the complete transmission, including any required fee. [ Note 1.] Eastern Time controls the filing date. Once a request is transmitted electronically, the system immediately provides the sender with an email acknowledgement of receipt. For more information regarding ESTTA, see TBMP § 110.09.
Mailed or hand-delivered correspondence is stamped with the date of receipt in the Office (i.e., the "filing" date) unless the correspondence is filed by the Priority Mail Express® procedure provided in 37 CFR § 2.198. [ Note 2.]
When correspondence intended for the Board is filed by the "Priority Mail Express® Post Office to Addressee" service of the United States Postal Service the document will be stamped with the "date in" as the date of receipt (unless the "date in" is a Saturday, Sunday, or Federal holiday within the District of Columbia). If the date of deposit with the Postal Service cannot be determined, the correspondence will be stamped with the date of its actual receipt in the USPTO. [ Note 3.]
The only correspondence intended for the Board which may be filed by fax transmission is a notice of ex parte appeal to the Board. [ Note 4.] If correspondence which is permitted to be filed by fax transmission to the Board is filed by that method with a certificate of transmission in accordance with 37 CFR § 2.197(a), the transmission date specified in the certificate of transmission is used for purposes of determining the timeliness of the correspondence. [ Note 5.] See TBMP § 107. The date of receipt of the transmission, as described in 37 CFR § 2.195(a)(3), is used for all other purposes. [ Note 6.]
When correspondence intended for the Board is filed by first-class mail with a certificate of mailing, in accordance with the procedure described in 37 CFR § 2.197(a), it is stamped with the date of receipt of the correspondence in the Office. The mailing date specified in the certificate of mailing is used for purposes of determining the timeliness of the correspondence. The date of receipt is used for all other purposes. [ Note 7.]
NOTES:
1. 37 CFR § 2.195(a)(2); Vibe Records Inc. v. Vibe Media Group LLC, 88 USPQ2d 1280, 1282 (TTAB 2008) (receipt date of ESTTA submission is automatically affixed to paper). See http://estta.uspto.gov for instructions for filing via ESTTA.
3. 37 CFR § 2.195 and 37 CFR § 2.198. See 37 CFR § 2.198(d), regarding procedures for petitioning the Director to correct a filing date discrepancy.
4. 37 CFR § 2.195(d)(1), Correspondence in inter partes proceedings may not be filed by fax. See, e.g., Vibe Records Inc. v. Vibe Media Group LLC, 88 USPQ2d 1280, 1283 (TTAB 2008) (fax transmission of notice of opposition not acceptable under any circumstances and not accorded a filing date).
7. 37 CFR § 2.195(a) and 37 CFR § 2.197(a). For information concerning the date stamped by the USPTO on correspondence when interruptions or emergencies occur in the United States Postal Service, see 35 U.S.C. § 21 and 37 CFR § 2.195(e).