309.02(b) Signature of Complaint
The complaint need not be verified, but it must be signed by the plaintiff or by the plaintiff’s attorney, as specified in 37 C.F.R. § 11.1, or other authorized representative, as specified in 37 C.F.R. § 11.14(b). [ Note 1.] See TBMP § 106.02 and TBMP § 114.06. Electronic signatures pursuant to 37 C.F.R. § 2.193(c) are required for complaints submitted electronically via ESTTA. [ Note 2.] The Board views the electronic signature on the ESTTA filing form as pertaining to all attachments thereto. [ Note 3.] Thus, a plaintiff’s electronic signature on the ESTTA filing form serves as its signature for the entire complaint being filed, including in the absence of a signature on any attachment to the filing form. [ Note 4.]
If an attorney signs the complaint, it need not be accompanied by a written power of attorney, but if a written power of attorney is filed, the plaintiff must sign it. If a plaintiff signing for itself is a partnership, the signature must be made by a partner. If a plaintiff signing for itself is a corporation or similar juristic entity, the signature must be made by an officer of the plaintiff who has authority to sign for the plaintiff and whose title is given. The signature should be accompanied by a description of the capacity in which the signing individual signs (i.e., as plaintiff, if plaintiff is an individual; as counsel for plaintiff; as a partner of plaintiff, if plaintiff is a partnership; as an officer of plaintiff identified by title, if plaintiff is a corporation; etc.).
Although a complaint must be signed, an unsigned or improperly signed complaint will not be refused consideration for that reason if a signed copy is submitted to the Board within the time limit set in the notification of this defect by the Board. [ Note 5.] See TBMP § 106.02.
However, Trademark Act § 14, 15 U.S.C. § 1064, limits, after a specified five-year period, the grounds on which certain Principal Register registrations may be cancelled. [ Note 6.] See TBMP § 307.02(a). If an unsigned petition to cancel such a registration is filed prior to the expiration of the five-year period, but a signed copy thereof is not filed until after the expiration of the period, the petition can be entertained by the Board only to the extent that it pleads a ground for cancellation permitted after the expiration of the five-year period. [ Note 7.] Cf. TBMP § 308.02(b). Although whenever it comes to the Board’s attention, the Board makes every effort to notify petitioners of unsigned complaints before the expiration of any applicable statutory deadline, so that the informality may be corrected prior to the deadline, the Board has no obligation to do so, and cannot assume the burden of discovering filing errors within any specified time. [ Note 8.]
NOTES:
1. See 37 C.F.R. § 2.101(b) and 37 C.F.R. § 2.111(b). See also Media Online Inc. v. El Clasificado, Inc., 88 USPQ2d 1285, 1286 n.3 (TTAB 2008). Cf. Birlinn Ltd. v. Stewart, 111 USPQ2d 1905 (TTAB 2014) (signatory not authorized under Trademark Rules, Board applies opportunity to cure provision in § 2.119(e) to improperly signed papers).
2. See 37 C.F.R. § 2.101(b) and 37 C.F.R. § 2.111(b).
3. PPG Industries Inc. v. Guardian Industries Corp., 73 USPQ2d 1926, 1927 (TTAB 2005) ("Since ESTTA’s inception, the Board has viewed the ESTTA filing form and any attachments thereto as comprising a single document or paper being filed with the Board").See also CSC Holdings LLC v. SAS Optimhome, 99 USPQ2d 1959, 1961-62 (TTAB 2011); Hunt Control Systems Inc. v. Koninklijke Philips Electronics N.V., 98 USPQ2d 1558, 1561 (TTAB 2011); Schott AG v. Scott, 88 USPQ2d 1862, 1863 n.3 (TTAB 2008) ("[T]he ESTTA generated filing form … is considered part of the plaintiff’s initial pleading"); MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 69950, 69957 (October 7, 2016) (The ESTTA cover sheet is considered part of the complete opposition pleading).
4. PPG Industries Inc. v. Guardian Industries Corp., 73 USPQ2d 1926, 1928 (TTAB 2005).
5. See 37 C.F.R. § 2.119(e); Birlinn Ltd. v. Stewart, 111 USPQ2d 1905 (TTAB 2014) (signatory not authorized under Trademark Rules, Board applies opportunity to cure provision in § 2.119(e) to improperly signed papers).
6. See Trademark Act § 14, 15 U.S.C. § 1064; 37 C.F.R. § 2.111(b).
7. Cf., e.g., cases involving former requirement for verification, Williamson-Dickie Manufacturing Co. v. Mann Overall Co., 359 F.2d 450, 149 USPQ 518, 520 (CCPA 1966) (the filing date of a petition to cancel is the date of receipt in the USPTO of the verified petition and filing fee); Texas Instruments Inc. v. Conklin Instrument Corp., 161 USPQ 740, 741 (TTAB 1969) (unverified petition timely filed but ineffective; verified substitute petition untimely). Cf. also In re L.R. Sport Inc., 25 USPQ2d 1533, 1534 (Comm’r 1992) (timely payment of filing fee for statement of use is statutory and cannot be waived).
8. Cf. In re Holland American Wafer Co., 737 F.2d 1015, 222 USPQ 273, 275 (Fed. Cir. 1984) (regarding rejection of renewal application); In re L.R. Sport Inc., 25 USPQ2d 1533, 1534 (Comm’r 1992) (regarding rejection of statement of use); and In re Application Papers Filed November 12, 1965, 152 USPQ 194, 195 (Comm’r 1966) (regarding insufficient filing fee for patent application).