120 Access to Files
37 C.F.R. § 2.27(d) Except as provided in paragraph (e) of this section, the official records of applications and all proceedings relating thereto are available for public inspection and copies of the documents may be furnished upon payment of the fee required by § 2.6.
37 C.F.R. § 2.27(e) Anything ordered to be filed under seal pursuant to a protective order issued or made by any court or by the Trademark Trial and Appeal Board in any proceeding involving an application or a registration shall be kept confidential and shall not be made available for public inspection or copying unless otherwise ordered by the court or the Board, or unless the party protected by the order voluntarily discloses the matter subject thereto. When possible, only confidential portions of filings with the Board shall be filed under seal.
120.01 Non - confidential Files
Except for materials filed under seal pursuant to a protective order or agreement, all pending Board proceeding files and exhibits thereto are available for public inspection and copying. [ Note 1.] Most Board records since 2001 are electronic. The electronic records of the Board are accessible via TTABVUE on the Board’s home page of the USPTO website at http://ttabvue.uspto.gov /. The electronic record of applications and registrations, which are the subject matter of pending proceedings before the Board, and extensions of time to oppose are accessible via the Internet at http://tsdr.uspto.gov/.
Board records submitted prior to approximately 2001 are kept in paper. An individual who wishes to inspect or copy one of the paper files is directed to the National Archives and Records Administration, www.archives.gov/research.
NOTES:
1. See 37 C.F.R. § 2.27.
120.02 Confidential Materials
Materials filed with the Board under seal pursuant to the Board’s standard protective order, or a protective agreement signed by the parties, or a protective order entered by the Board or any court and filed in compliance with TBMP § 412. 04, will be kept confidential and will not be made available for public inspection or copying unless otherwise ordered by the court or the Board, or unless the party protected by the order voluntarily discloses the matter subject thereto. [ Note 1.] These materials may be inspected only by those individuals who are entitled, under the terms of the protective order, to have access to the protected information. [ Note 2.] See TBMP § 412. (Protective Orders), TBMP § 526 (Motion for Protective Order), TBMP § 703.01(p) (Confidential or Trade Secret Material). To be handled as confidential, and kept out of the public record, confidential materials must be so designated at the time of filing. Regardless of submission method, all submissions in Board proceedings which are not properly designated as confidential will be placed in the Board’s public records, available on the Internet in TTABVUE.
When using ESTTA, the filer should select "CONFIDENTIAL Opposition, Cancellation or Concurrent Use" under "File Documents in a Board Proceeding." [ Note 3.] Filings made using this option will not be made available for public viewing, although an entry will be made on the publicly-available docket sheet in TTABVUE.
If a paper submission contains confidential material, it must be submitted under separate cover. Both the submission and its cover must be marked confidential and must identify the case number and the parties. Paper submissions are scanned into TTABVUE and designated "confidential." After scanning and designating as "confidential," the Board retains the confidential paper submissions for a short period of time before disposing of the confidential paper submissions in an appropriate manner.
The parties are strongly discouraged from submitting materials which contain the personally identifiable information of an individual (e.g., account numbers, social security number, home addresses, and home phone numbers). The parties are also discouraged from submitting unnecessary information (e.g., payroll) that may lead to identity theft or other fraudulent use of such information, even where such information concerns a business but may not be addressed in either the Board’s standard protective order or a stipulated protective agreement between the parties. If such information is embedded in the materials being submitted, such privacy information is to be redacted.
Except for materials filed under seal pursuant to a protective order or agreement, all Board proceeding files and exhibits thereto are available for public inspection and copying. Therefore, only the particular discovery responses, exhibits, deposition transcript pages, or those portions of a brief, pleading or motion that disclose confidential information should be filed under seal pursuant to a protective order. [ Note 4.] A good practice would be to clearly mark as "confidential" each page of a submission that contains such matter.
However filed, if a party submits any brief, pleading, motion or other such filing containing confidential information under seal, the party must also submit for the public record a redacted version of said submissions. [ Note 5.]
NOTES:
1. See 37 C.F.R. § 2.116(g) ("The Trademark Trial and Appeal Board’s standard protective order is automatically imposed in all inter partes proceedings, unless the parties, by stipulation approved by the Board, agree to an alternative order, or a motion by a party to use an alternative order is granted by the Board. The standard protective order is available at the Office’s Web site.").
2. See 37 C.F.R. § 2.27(e); 37 C.F.R. § 2.120(f); 37 C.F.R. § 2.125(f).
3. See http://estta.uspto.gov/filing-type.jsp. This option is only available for filing documents in an existing opposition, cancellation, or concurrent use proceeding. Since a notice of opposition or petition for cancellation provides only notice of a claim and general facts in support of it, there should rarely, if ever, be occasion to file confidential material with a notice or petition. The existence of the proceeding itself will not be treated as confidential.
4. See 37 C.F.R. § 2.126(c); Duke University v. Haggar Clothing Co., 54 USPQ2d 1443, 1445 (TTAB 2000). See also ProMark Brands, Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1238 n.24 (TTAB 2015) (party allowed time to resubmit deposition transcript separating the confidential testimony from nonconfidential testimony).
5. See 37 C.F.R. § 2.126(c).
120.03 Files of Terminated Proceedings
When an inter partes proceeding has been finally determined, i.e., when the proceeding is over (including the resolution of any direct court review), the Office takes certain further steps based on the final decision, including those steps necessary to give effect to the decision. This process is referred to as the "termination" of the proceeding. See TBMP § 806 (Termination of Proceeding).
The official records for all Board proceedings are now kept electronically. The electronic files of all Board proceedings continue to remain available online through TTABVUE after termination.
Pursuant to the National Archives retention schedule, terminated inter partes proceeding file records are transferred to the National Archives after 5 years for permanent retention.
The paper files of cancelled and expired registrations were scheduled to be destroyed three years after the date of cancellation or expiration. The paper files of abandoned applications were scheduled to be destroyed three years after the date of abandonment. In addition, the paper files of terminated opposition proceedings numbered from 30,000 through 53,999, and of terminated cancellation proceedings numbered from 1 through 9399, have been destroyed.
An individual who wishes to inspect or copy a paper file is directed to the National Archives and Records Administration, www.archives.gov/research.