1003 Institution of Interference
37 C.F.R. § 2.92 Preliminary to interference. An interference which has been declared by the Director will not be instituted by the Trademark Trial and Appeal Board until the examining attorney has determined that the marks which are to form the subject matter of the controversy are registrable, and all of the marks have been published in the Official Gazette for opposition.
37 C.F.R. § 2.93 Institution of interference. An interference is instituted by the mailing of a notice of interference to the parties. The notice shall be sent to each applicant, in care of the applicant's attorney or other representative of record, if any, and if one of the parties is a registrant, the notice shall be sent to the registrant or the registrant's assignee of record. The notice shall give the name and address of every adverse party and of the adverse party's attorney or other authorized representative, if any, together with the serial number and date of filing and publication of each of the applications, or the registration number and date of issuance of each of the registrations, involved.
An interference proceeding does not commence with the granting of a petition to the Director to declare an interference. Rather, the interference proceeding will not be instituted unless and until the examining attorney has determined that the marks which are to be included in the interference are registrable, but for the interfering marks; and all of the marks have been published (preferably together) in the Official Gazette for opposition, subject to the interference. [ Note 1.]
If an application published subject to interference is opposed by an entity which is not to be a party to the interference, the opposition may be determined first, following which the interference, if still necessary and appropriate, will be instituted. [ Note 2.] Alternatively, depending upon the circumstances, the opposition and interference may go forward contemporaneously. If an opposition is filed by an entity that is to be a party to the interference, and the interference is to involve three or more parties, the opposition will be dismissed without prejudice in favor of the interference proceeding, wherein the rights of all parties can be determined in a single proceeding. If an opposition is filed by an entity that is to be a party to the interference, and the interference is to involve only two parties, the rights of the parties will be determined in the opposition, and the interference will not be instituted.
If the marks which are to be included in an interference (1) are found by the examining attorney to be registrable, (2) are published for opposition, and (3) survive the opposition period (as indicated in the preceding paragraph), the interference proceeding will be instituted by the Board.
The Board prepares a "Notice of Interference" notifying the parties that the interference proceeding is thereby instituted, and setting conferencing, disclosure, discovery, trial and briefing dates in the case, as may be deemed appropriate by the Board. The notice specifies the name and address of each party to the proceeding and of each party's attorney or other authorized representative, if any; the mark of each party; and the serial number, filing date, and publication date of each involved application. [ Note 3.]
An interference proceeding commences when the Board mails or emails the notice of interference to the parties. The notice is mailed or emailed to the attorney or other authorized representative of each involved applicant, or, if the applicant does not have an attorney or other authorized representative, to the applicant. [ Note 4.]
It is not the Director’s practice to declare an interference with a registration. See TBMP § 1002. However, should the Director elect to declare an interference with one or more registrations, the notice of interference would specify the registration number and issuance date of each involved registration, and would be mailed or emailed to the registrant or its assignee of record. [ Note 5.]
There are no pleadings in an interference proceeding. Cf. TBMP § 1003 (Institution of Interference), TBMP § 1106 (Commencement of Concurrent Use Proceeding), and TBMP § 1107 (Answer; Default in Concurrent Use Proceeding). The notice of interference takes the place of pleadings, to the extent that it serves to provide each party with information concerning the involved application (or registration, if an interference should be declared with one or more registrations) of every adverse party.
There is no fee for an interference proceeding, beyond the fee required for a petition to the Director to declare an interference. [ Note 6.]
NOTES:
1. See 37 C.F.R. § 2.92; TMEP § 1208.03(c).
2. Cf. 37 C.F.R. § 2.99(c).
5. See 37 C.F.R. § 2.93.
6. See 37 C.F.R. § 2.6.