902.02 Time For Filing Notice Of Appeal, Cross-Appeal
Trademark Act § 21(a)(2), 15 U.S.C. § 1071(a)(2) When an appeal is taken to the United States Court of Appeals for the Federal Circuit, the appellant shall file in the United States Patent and Trademark Office a written notice of appeal directed to the Director, within such time after the date of the decision from which the appeal is taken as the Director prescribes, but in no case less than 60 days after that date.
37 C.F.R. § 2.145(d) Time for appeal or civil action.
- (1) For an appeal under section 21(a). The notice of appeal filed pursuant to section 21(a) of the Act must be filed with the Director no later than sixty-three (63) days from the date of the final decision of the Trademark Trial and Appeal Board or the Director. In inter partes cases, the time for filing a notice of cross-appeal expires 14 days after service of the notice of appeal or 63 days from the date of the decision of the Trademark Trial and Appeal Board or the Director, whichever is later.
- (2) For a notice of election under 21(a)(1) and a civil action pursuant to such notice of election. The times for filing a notice of election under section 21(a)(1) and for commencing a civil action pursuant to a notice of election are governed by section 21(a)(1) of the Act.
- (3) For a civil action under section 21(b). A civil action must be commenced no later than sixty-three (63) days after the date of the final decision of the Trademark Trial and Appeal Board or Director. In inter partes cases, the time for filing a cross-action expires 14 days after service of the summons and complaint or 63 days from the date of the decision of the Trademark Trial and Appeal Board or the Director, whichever is later.
- (4) Time computation.
- (i) If a request for rehearing or reconsideration or modification of the Board 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 no later than sixty-three (63) days after action on the request.
- (ii) Holidays. The times specified in this section in days are calendar days. If the last day of time specified for an appeal, notice of election, 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 in the District of Columbia pursuant to § 2.196.
37 C.F.R. § 2.145(e) Extension of time.
- (1) The Director, or the Director’s designee, may extend the time for filing an appeal, or commencing a civil action, upon written request if:
- (i) Requested before the expiration of the period for filing an appeal or commencing a civil action, and upon a showing of good cause; or
- (ii) Requested after the expiration of the period for filing an appeal or commencing a civil action, and upon a showing that the failure to act was the result of excusable neglect.
- (2) The request must be filed as provided in § 104.2 of this chapter and addressed to the attention of the Office of the Solicitor. A copy of the request should also be filed with the Trademark Trial and Appeal Board via ESTTA.
The time for filing a notice of appeal to the United States Court of Appeals for the Federal Circuit ("Federal Circuit") is sixty-three (63) days from the date of the Board decision which is the subject of the appeal. [ Note 1.] 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 2.] 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 filing an appeal runs from the date of the entry of judgment subject to establishment of constructive use. [ Note 3.]
If a request for rehearing, reconsideration, or modification of the Board’s decision is filed within the time specified in 37 C.F.R. § 2.127(b), 37 C.F.R. § 2.129(c), or 37 C.F.R. § 2.144, or within any extension of time granted thereunder, the time for filing an appeal expires sixty-three (63) days after action on the request. [ Note 4.] 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 5.] 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 filing an appeal.
In an inter partes case, the time for filing a notice of cross-appeal expires (1) 14 days after service of the notice of appeal, or (2) 63 days from the date of the Board decision which is the subject of the appeal, whichever is later. [ Note 6.]
The certificate of mailing and certificate of transmission procedures described in 37 C.F.R. § 2.197, and the Priority Mail Express® procedure described in 37 C.F.R. § 2.198, are available for filing a notice of appeal or a notice of cross-appeal with the Director. However, the notice of appeal filed with the Board must be through ESTTA.
If a written request to extend the time for appeal is filed before the expiration of the appeal period, the Director may grant the request on a showing of good cause. If the request is not filed until after the expiration of the appeal period, the Director may grant the request only on a showing that the failure to act was the result of excusable neglect. [ Note 7.] A request for an extension of time to file an appeal should be addressed to the attention of the Office of the General Counsel, as provided in 37 C.F.R. § 104.2, and directed to the attention of the Solicitor. See 37 C.F.R. § 2.146(e)(2).
It is the Director, through the Office of the Solicitor in the Office of the General Counsel, not the Board, who determines whether a notice of appeal has been timely filed. If the Director determines that a notice of appeal was not timely, the Director notifies the clerk of the Federal Circuit thereof. The clerk in turn issues an order to the appellant to show cause why the appeal should not be dismissed, and refers appellant’s response to the Court. [ Note 8.]
An appellant that has received an order to show cause from the clerk of the Federal Circuit may file a request under 37 C.F.R. § 2.145(e) for an extension of time to file an appeal, accompanied by a showing that the late filing of the notice of appeal was the result of excusable neglect. The request should be filed in the Office of the General Counsel and directed to the attention of the Solicitor, which will notify the clerk of the Court of the Director’s decision on the request.
NOTES:
1. Trademark Act § 21(a)(2), 15 U.S.C. § 1071(a)(2); 37 C.F.R. § 2.145(d)(1).
2. 37 C.F.R. § 2.145(d)(4)(ii).
3. 37 C.F.R. § 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).
5. 37 C.F.R. § 2.145(d)(4)(ii).
8. See Fed. Cir. R. 15(b)(2).