111.01    Priority Mail Express® - In General

37 C.F.R. § 2.198  Filing of correspondence by Priority Mail Express®.

  • (a) The filing date of correspondence submitted under this section 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.
  • (b) If the USPS deposit date cannot be determined, the filing date is the date the Office receives the submission.
  • (c) If there is a discrepancy between the filing date accorded by the Office to the correspondence and the "date accepted," the party who submitted the correspondence may file a petition to the Director under § 2.146(a)(2) to accord the correspondence a filing date as of the "date accepted." The petition must:
    • (1) Be filed within two months after the date of deposit;
    • (2) Include a true copy of the Priority Mail Express® mailing label showing the "date accepted," and any other official notation by the USPS relied upon to show the date of deposit; and
    • (3) Include a verified statement attesting to the facts of the original mailing.
  • (d) If the party who submitted the correspondence can show that the "date accepted" was incorrectly entered or omitted by the USPS, the party may file a petition to the Director under § 2.146(a)(2) to accord the correspondence a filing date as of the date the correspondence is shown to have been deposited with the USPS. The petition must:
    • (1) Be filed within two months after the date of deposit;
    • (2) Include proof that the correspondence was deposited in the Priority Mail Express® Post Office to Addressee service prior to the last scheduled pickup on the requested filing date. Such proof must be corroborated by evidence from the USPS or evidence that came into being within one business day after the date of deposit; and
    • (3) Include a verified statement attesting to the facts of the original mailing.
  • (e) If correspondence is properly addressed to the Office pursuant to § 2.190 and deposited with sufficient postage in the Priority Mail Express® Post Office to Addressee service of the USPS, but not received by the Office, the party who submitted the correspondence may file a petition to the Director under § 2.146(a)(2) to consider such correspondence filed in the Office on the USPS deposit date. The petition must:
    • (1) Be filed within two months after the date of deposit;
    • (2) Include a copy of the previously mailed correspondence showing the number of the Priority Mail Express® mailing label thereon; and
    • (3) Include a verified statement attesting to the facts of the original mailing.

The Priority Mail Express® Post Office to Addressee service is not applicable to the filing of an extension of time to oppose a Trademark Act § 66(a) application, 15 U.S.C. §1141f(a), or a notice of opposition involving an application under Trademark Act § 66(a). [ Note 1.]

Any paper or fee that meets an exception of the requirement to file through ESTTA, can be filed utilizing the Priority Mail Express® Post Office to Addressee service of the United States Postal Service, and be considered as having been filed in the Office on the date of deposit with the USPS. [ Note 2.]

In effect, the Priority Mail Express® procedure permits all types of permitted correspondence intended for the Board to be sent by the Priority Mail Express® Post Office to Addressee service even on the due date for the correspondence and still be considered timely, notwithstanding the fact that the mailed correspondence may not be received by the Board until after the due date. This filing procedure applies only to the Priority Mail Express® Post Office to Addressee service of the United States Postal Service, not any third-party carrier that offers overnight delivery. [ Note 3.]

Please Note: Priority Mail Express® now substitutes for "Express Mail."

NOTES:

 1.   37 C.F.R. § 2.102(a)(1)  (extension of time to oppose) and 37 C.F.R. § 2.101(b)(3)  (notice of opposition).

 2.   See 37 C.F.R. § 2.198(a). See also TMEP § 305.03 for Priority Mail Express® procedures for the Trademark Examining Operation.

 3.   See, e.g., In re Pacesetter Group, Inc., 45 USPQ2d 1703, 1704 (Comm’r 1994) (correspondence sent by Federal Express not entitled to benefit of Express Mail procedure).

111.01(a)    Requirements for Priority Mail Express®

Prior to the original mailing, the Priority Mail Express® mailing label number should be placed on correspondence filed thereunder. The number of the mailing label should be placed on each separate submission and each fee transmitted, either directly on the document or on a separate paper firmly and securely attached to the document.

A party meeting an exception of the requirement to file submissions in Board proceedings through ESTTA who elects to send mail to the Board by the Priority Mail Express® service of the U.S. Postal Service should be careful to use the "Priority Mail Express® Post Office to Addressee" service, rather than the Priority Mail Express® "Hold for Pickup" service which delivers the mail Post Office to Post Office.

111.01(b)    Questionable Date of Mailing

If the "date accepted" appearing on the Priority Mail Express® label is illegible, the filing date will be the actual receipt date by the USPTO. 37 C.F.R. § 2.198(b). If there is a discrepancy between the filing date assigned by the Office and the date of deposit, the person who filed the correspondence may petition the Director to accord the "date accepted" date by providing the evidence set forth in 37 C.F.R. § 2.198(c), 37 C.F.R. § 2.198(d), and 37 C.F.R. § 2.198(e). [ Note 1.]

NOTES:

 1.   See TMEP § 305.03 for further information on petitions to change the filing date.