109    Filing Date

37 C.F.R. § 2.195. Filing date of trademark correspondence.The filing date of trademark correspondence is determined as follows:

  • (a) Electronic submissions. The filing date of an electronic submission is the date the Office receives the submission, based on Eastern Time, regardless of whether that date is a Saturday, Sunday, or Federal holiday within the District of Columbia.
  • (b) Paper correspondence. The filing date of a submission submitted on paper is the date the Office receives the submission, except as follows:
    • (1) Priority Mail Express®. The filing date of the submission is the date of deposit with the USPS, if filed pursuant to the requirements of § 2.198.
    • * * * *
    • (3) Office closed. The Office is not open to receive paper correspondence on any day that is a Saturday, Sunday, or Federal holiday within the District of Columbia.
  • (c) Email and facsimile submissions. Email and facsimile submissions are not permitted and, if submitted, will not be accorded a date of receipt.
  • (d) Interruptions in USPS. If the Director designates a postal service interruption or emergency within the meaning of 35 U.S.C. 21(a), any person attempting to file correspondence by Priority Mail Express® Post Office to Addressee service who was unable to deposit the correspondence with the USPS due to the interruption or emergency may petition the Director to consider such correspondence as filed on a particular date in the Office. The petition must:
    • (1) Be filed promptly after the ending of the designated interruption or emergency;
    • (2) Include the original correspondence or a copy of the original correspondence; and
    • (3) Include a statement that the correspondence would have been deposited with the USPS on the requested filing date but for the designated interruption or emergency in Priority Mail Express® service; and that the correspondence attached to the petition is the original correspondence or a true copy of the correspondence originally attempted to be deposited as Priority Mail Express® on the requested filing date.

The cover sheet for correspondence transmitted electronically through ESTTA is automatically affixed with the date the Office receives the complete transmission, including any required fee. [ Note 1.] Eastern Time controls the filing date. [ Note 2.] Once a request is transmitted electronically, the system immediately provides the sender with an email acknowledgement of receipt. For more information regarding ESTTA, see TBMP § 110.

Mailed or hand-delivered correspondence, when permitted, is stamped with the date of receipt in the Office (i.e., the "filing" date) unless the correspondence is filed by the Priority Mail Express® procedure provided in 37 C.F.R. § 2.198. [ Note 3.]

When correspondence intended for the Board is filed by the "Priority Mail Express® Post Office to Addressee" service of the United States Postal Service, the document's filing date is the date of deposit with the USPS, as shown by the "date accepted" on the Priority Mail Express® label or other official USPS notation. If the date of deposit with the Postal Service cannot be determined, the correspondence will be stamped with the date of its actual receipt in the USPTO. [ Note 4.]

The Board does not accept correspondence by facsimile. Any such filings, including a notice of ex parte appeal, will not be accorded a filing date. [ Note 5.]

When correspondence intended for the Board is filed by first-class mail with a certificate of mailing, in accordance with the procedure described in 37 C.F.R. § 2.197(a), it is stamped with the date of receipt of the correspondence in the Office. The mailing date specified in the certificate of mailing is used for purposes of determining the timeliness of the correspondence. The date of receipt is used for all other purposes. [ Note 6.]

NOTES:

 1.   37 C.F.R. § 2.195; Vibe Records Inc. v. Vibe Media Group LLC, 88 USPQ2d 1280, 1282 (TTAB 2008) (receipt date of ESTTA submission is automatically affixed to paper). See https://estta.uspto.gov  for instructions for filing using ESTTA.

 2.   37 C.F.R, § 2.195. See MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES OF PRACTICE, 81 Fed. Reg. 19296, 19296 (to be codified at 37 C.F.R. pt. 2 (proposed April 4, 2016)).

 3.   37 C.F.R. § 2.195(b).

 4.   37 C.F.R. § 2.195(b)(1), 37 C.F.R. § 2.198(a)  and 37 C.F.R. § 2.198(b). See 37 C.F.R. § 2.198(c)  and 37 C.F.R. § 2.198(d), regarding procedures for petitioning the Director to correct a filing date discrepancy and for procedures for petitioning the Director if the "date accepted" by the Postal Service was incorrectly entered or omitted.

 5.   37 C.F.R. § 2.195(c). See also Vibe Records Inc. v. Vibe Media Group LLC, 88 USPQ2d 1280, 1283 (TTAB 2008) (fax transmission of notice of opposition not acceptable under any circumstances and not accorded a filing date).

 6.   37 C.F.R. § 2.195(b)(2)  and 37 C.F.R. § 2.197(a). For information concerning the date stamped by the USPTO on correspondence by "Priority Mail Express® Post Office to Addressee" when interruptions or emergencies occur in the United States Postal Service, see 35 U.S.C. § 21 and 37 C.F.R. § 2.195(d).