308.02(b) Insufficient Fee
A petition for cancellation must be filed electronically through ESTTA. [ Note 1.] See TBMP § 309.
An otherwise timely petition for cancellation will not be accepted via ESTTA unless the petition to cancel is accompanied by a fee that is sufficient to pay in full for each named party petitioner to petition for cancellation of the registration of a mark in each class specified in the petition for cancellation. [ Note 2.]
In those rare instances where an otherwise timely petition to cancel has been filed on paper, and such filing is not accompanied by any fee, or a sufficient fee to pay in full for each named petitioner for each class in the registration(s) for which cancellation is sought, the petition to cancel will be rejected and the Board will not institute a proceeding. [ Note 3.]
Except to the extent that the five-year period of Trademark Act § 14, 15 U.S.C. § 1064, is applicable in a particular case, there is no time limit for the filing of a petition to cancel an issued registration. Thus, if the petition is rejected for failure to submit a fee, or a fee that is sufficient to pay in full for each named petitioner for each class in the registration(s) for which cancellation is sought, the rejection of the petition is without prejudice to petitioner’s right to electronically file, at any time thereafter, a new petition to cancel provided that the five-year period, if applicable, has not expired, or, if expired, that the petition recites a ground permitted after the expiration of the five-year period. [ Note 5.]
The responsibility for filing proper fees rests with the party filing the fees. [ Note 6.]
NOTES:
1. See 37 C.F.R. § 2.111(c)(1). Board practice does not permit the filing of a petition for cancellation on CD-ROM. See 37 C.F.R. § 2.126; MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 72 Fed. Reg. 42242, 42247 (August 1, 2007).
2. See 37 C.F.R. § 2.111(d). Cf. Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1115 n.2 (TTAB 2009) (second named opposer not party to proceeding where notice of opposition named two opposers, but fee payment sufficient for only one opposer and only one opposer identified in ESTTA cover sheet); Vibe Records Inc. v. Vibe Media Group LLC, 88 USPQ2d 1280, 1282-83 (TTAB 2008) (where ESTTA filing process not completed because no fee was paid, date appearing on the ESTTA "Validate" screen is inoperative; opposition dismissed as a nullity).
3. See 37 C.F.R. § 2.111(d).
4. Cf. In re Holland American Wafer Co., 737 F.2d 1015, 222 USPQ 273, 275 (Fed. Cir. 1984) (defective renewal application must be corrected and refiled within statutory time period); In re Application Papers Filed November 12, 1965, 152 USPQ 194, 195 (Comm’r 1966) (regarding insufficient filing fee for patent application).
5. Cf. In re Holland American Wafer Co., 737 F.2d 1015, 222 USPQ 273, 275 (Fed. Cir. 1984) (regarding defective renewal application); In re Application Papers Filed November 12, 1965, 152 USPQ 194, 195 (Comm’r 1966) (regarding insufficient filing fee for patent application).