1302.01 In General
Trademark Act § 20, 15 U.S.C § 1070 Appeal from examiner to Trademark Trial and Appeal Board. An appeal may be taken to the Trademark Trial and Appeal Board from any final decision of the examiner in charge of the registration of marks or a final decision by an examiner in an ex parte expungement proceeding or ex parte reexamination proceeding upon the payment of the prescribed fee
37 C.F.R § 2.141 Ex parte appeals
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- (b) Appeal from expungement or reexamination proceeding. After issuance of a final Office action in an expungement or reexamination proceeding under § 2.93, a registrant may appeal to the Trademark Trial and Appeal Board, upon payment of the prescribed fee for each class in the registration for which the appeal is taken, within the time provided in § 2.142(a)(2).
- (c) Appeal fee required. The applicant or registrant must pay an appeal fee for each class for which the appeal is taken. If an appeal fee is not paid for at least one class of goods or services before the expiration of the time for appeal, when the appeal is from a final refusal of an application, the application will be abandoned or, when the appeal is from an expungement or reexamination proceeding, the Office will terminate the proceeding. When a multiple-class application or registration is involved, if an appeal fee is submitted for fewer than all classes, the applicant or registrant must specify the class(es) for which the appeal is taken. If the applicant or registrant 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 or registrant 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 or registrant may either pay the additional fees or specify the class(es) being appealed. If the applicant or registrant 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.
37 C.F.R § 2.142 Time and manner of ex parte appeals.
(a)(2) An appeal filed under the provisions of § 2.141(b) from an expungement or reexamination proceeding must be filed within three months from the issue date of the final Office action.
(a)(3) An appeal is taken by filing a notice of appeal, as prescribed in § 2.126, and paying the appeal fee.
An appeal to the Board from a final decision in an ex parte expungement proceeding or ex parte reexamination proceeding is taken by timely filing in the Office, see TBMP § 1302.02, both a notice of appeal and the prescribed appeal fee. [ Note 1.] See TBMP § 1302.04. If the notice of appeal and fee are not timely filed, the Board cannot entertain the appeal, and will terminate the proceeding. [ Note 2.]
All requirements made by the examining attorney, but which are not to be the subject of appeal, should be complied with prior to the filing of an appeal, and the statement of issues in the brief should note such compliance. [ Note 3.] If a registrant that files an appeal to the Board fails to comply with such a requirement, the decision from the expungement or reexamination proceeding may be affirmed by the Board for failure to comply with that requirement, regardless of the disposition made by the Board of the issue or issues that are the subject of appeal.
If a registration contains multiple classes that are the subject of an expungement or reexamination proceeding, and the registrant wishes to appeal a final decision as to some but not all of the classes, the registrant should indicate in the notice of appeal the classes in which the decision is being appealed. [ Note 4.] Any remaining classes for which there is a final adverse decision that is not the subject of the appeal will be cancelled in due course as to goods/services for which there was a final adverse decision. [ Note 5.]
NOTES:
1. See 37 C.F.R § 2.142(a)(3); 37 C.F.R § 2.6(a)(18). See also 15 U.S.C § 1070; 37 C.F.R § 2.141 and 37 C.F.R § 2.142(a).
4. See 37 C.F.R § 2.141(b).
5. See 37 C.F.R § 2.94.