1202.04 Appeal Fee
37 C.F.R. § 2.141 Ex parte appeals from action of trademark examining attorney.
- (a) An applicant may, upon final refusal by the trademark examining attorney, appeal to the Trademark Trial and Appeal Board upon payment of the prescribed fee for each class in the application for which an appeal is taken, within six months of the date of issuance of the final action. A second refusal on the same grounds may be considered as final by the applicant for purpose of appeal.
- (b) The applicant must pay an appeal fee for each class from which the appeal is taken. If the applicant does not pay an appeal fee for at least one class of goods or services before expiration of the six-month statutory filing period, the application will be abandoned. In a multiple-class application, if an appeal fee is submitted for fewer than all classes, the applicant must specify the class(es) in which the appeal is taken. If the applicant timely submits a fee sufficient to pay for an appeal in at least one class, but insufficient to cover all the classes, and the applicant has not specified the class(es) to which the fee applies, the Board will issue a written notice setting a time limit in which the applicant may either pay the additional fees or specify the class(es) being appealed. If the applicant does not submit the required fee or specify the class(es) being appealed within the set time period, the Board will apply the fee(s) to the class(es) in ascending order, beginning with the lowest numbered class.
Because filing through ESTTA is mandatory, fees are collected at the time of filing. However, the following addresses circumstances where fees accompanying paper filings are, in whole or in part, deficient. An ex parte appeal to the Board is taken by timely filing in the Office both a notice of appeal and the prescribed appeal fee for each class for which the appeal is taken. [ Note 1.] If a notice of appeal is timely filed, but the appeal fee is not, the appeal will be untimely, and the application will be deemed to have been abandoned. See TBMP § 1202.01. In such circumstance, however, the applicant may file a petition to revive. [ Note 2.] Further, if a party fails to timely file an appeal fee but has previously given a general authorization to charge all fees that may become due during the pendency of an application to a deposit account, such authorization will be accepted, provided that the deposit account contains sufficient funds. [ Note 3.]
The amount of the fee required for an ex parte appeal to the Board is specified in 37 C.F.R. § 2.6(a)(18). If an application in which an appeal is filed has more than one class of goods and/or services [ Note 4.] the required fee must be paid for each class in which appeal is taken. [ Note 5.] If an appeal is taken in, and an appeal fee is submitted for fewer than all of the classes in the application, the class or classes in which the appeal is taken should be specified. [ Note 6.] If the final requirement or refusal does not pertain to all classes in the application, the appeal fee need be submitted only for those classes for which a final requirement or refusal has issued. TBMP § 1202.05.
If an applicant timely submits a fee sufficient to pay for an appeal in at least one class, but the fee submitted is less than the required amount because multiple classes in an application are involved, and the applicant has not specified the class or classes to which the submitted fee applies, the Board will issue a written notice allowing the applicant until a set time in which to submit the required fee or to specify the class or classes appealed. If the required fee is not submitted, or the specification made, within the time set in the notice, the fee submitted will be applied to the classes in ascending order, beginning with the lowest numbered class and including the number of classes in the application for which sufficient fees have been submitted. [ Note 7.]
NOTES:
2. See generally, TMEP § 1714. See also TMEP § 1704.
4. See 37 C.F.R. § 2.86 and 37 C.F.R. § 2.141(b).
6. See 37 C.F.R. § 2.141(b) and TMEP § 1403.06.