1302.02 Time for Appeal from Expungement or Reexamination Proceeding
An appeal to the Board from a final decision in an ex parte expungement proceeding or ex parte reexamination proceeding must be filed within three months from the date of the final action from which the appeal is taken. [ Note 1.] This deadline may not be extended. [ Note 2.]
If a notice of appeal is timely filed, but the appeal fee is not timely paid, the appeal will be untimely, and the Board will terminate the proceeding. See TBMP §§ 1302.01 and 1302.04.
A notice of appeal to the Board must be filed through ESTTA in the manner prescribed in 37 C.F.R § 2.126(a). For more information regarding filing via ESTTA, see TBMP § 110. However, if ESTTA is unavailable due to technical problems, or when extraordinary circumstances are present, submissions may be filed in paper form and must include a written explanation of such technical problems or extraordinary circumstances. [ Note 3.] In the rare circumstances paper filing is necessary, the certificate of mailing procedure described in 37 C.F.R § 2.197, and the "Priority Mail Express®" procedure described in 37 C.F.R § 2.198, are available for the filing of an appeal to the Board. [ Note 4.] TBMP § 111.01 and TBMP § 111.02.
During the period between issuance of a final action and expiration of the time for filing an appeal therefrom, the registrant may file a request for reconsideration. [ Note 5.] See also TBMP § 1204. However, the filing of a request for reconsideration will not serve to stay the time for filing an appeal (or for petitioning the Director, if appropriate). [ Note 6.] For more information comparing an appeal to a petition to the Director, see TBMP § 1201.05. If a registrant that has filed a request for reconsideration of a final action wishes to preserve its right to appeal in the event that the request is unsuccessful, the registrant must file a notice of appeal and pay the fee prior to the expiration of the three-month period following issuance of the final action.
Prior to the expiration of time for filing an appeal from an expungement or reexamination proceeding, a registrant may file a petition to the Director under § 2.146 for relief from any outstanding requirement under §§ 2.11, 2.23, and 2.189 made final. If the petition is denied, the registrant will have three months from the date of issuance of the final action that contained the final requirement, or 30 days from the date of the decision on the petition, whichever date is later, to comply with the requirement. Such requirements cannot then be the subject of an appeal. [ Note 7.]
A registrant may petition the Director to reinstate a registration cancelled in whole or in part for failure to file a timely appeal from a final Office action issued in an expungement or reexamination proceeding. [ Note 8.] Ordinarily, if a registrant files a petition for reinstatement for the purpose of filing an appeal, the notice of appeal must be filed through ESTTA, and the petition for reinstatement should be filed through TEAS with a statement that a notice of appeal is being filed with the Board.
NOTES:
2. Contrast 37 C.F.R § 2.93(b)(1) (providing for extension of time to respond to non-final Office actions).
3. See 37 C.F.R § 2.126(b). See also MISCELLANEOUS CHANGES TO TRADEMARK TRIAL AND APPEAL BOARD RULES, 81 Fed. Reg. 69950, 69966 (Oct. 7, 2016) ("Such explanations must include the specific facts underlying the inability to file by ESTTA, rather than a mere conclusory statement that technical problems or extraordinary circumstances prevented the use of ESTTA.").
4. See 37 C.F.R § 2.197; 37 C.F.R § 2.198.
8. See 37 C.F.R. § 2.146(c)(2)37 C.F.R § 2.146(c)(2).