804.04   Persons Authorized to Sign Verification or Declaration

37 C.F.R. §2.33(a) 

The application must include a statement that is signed in accordance with the requirements of §2.193 and verified (sworn to) or supported by a declaration under §2.20 by a person properly authorized to sign on behalf of the applicant under §2.193(e)(1).

37 C.F.R. §2.193(e)(1)  Verification of facts.

 A verification in support of an application for registration, amendment to an application for registration, allegation of use under §2.76 or §2.88, request for extension of time to file a statement of use under §2.89, or an affidavit under section 8, 12(c), 15, or 71 of the Trademark Act must be sworn to or supported by a declaration under §2.20, signed by the owner or a person properly authorized to sign on behalf of the owner.  A person who is properly authorized to verify facts on behalf of an owner is:

  • (i) A person with legal authority to bind the owner (e.g., a corporate officer or general partner of a partnership);
  • (ii) A person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the owner; or
  • (iii) An attorney as defined in §11.1 of this chapter who has an actual written or verbal power of attorney or an implied power of attorney from the owner.

The Trademark Act does not specify the appropriate person to verify facts on behalf of an applicant.  The definition of a "person properly authorized to sign on behalf of the applicant" is set forth in 37 C.F.R. §2.193(e)(1).  This definition applies to applications for registration, amendments to allege use, statements of use, requests for extensions of time to file statements of use, affidavits of continued use or excusable nonuse under 15 U.S.C. §1058, affidavits of incontestability under 15 U.S.C. §1065, and combined filings under 15 U.S.C. §§1058 and 1059.  37 C.F.R. §§2.76(b)(1), 2.88(b)(1), 2.89(b)(3), and 2.161(b).  It also applies to declarations supporting amendments to dates of use, use of substitute specimens, claims of acquired distinctiveness under 15 U.S.C. §1052(f), amendments changing the basis for filing, and requests for amendment or correction of registrations under 15 U.S.C. §1057.  37 C.F.R. §2.193(e)(1).

Generally, the USPTO does not question the authority of the person who signs a verification, unless there is an inconsistency in the record as to the signatory’s authority to sign.  The USPTO presumes that the verification or declaration is properly signed.  In view of the broad definition of a "person properly authorized to sign on behalf of the applicant" in 37 C.F.R. §2.193(e)(1), the fact that an application is signed by someone whose title refers to a different entity is not considered an inconsistency that warrants an inquiry as to whether the verification was properly signed.  

Example:  If an application is filed by "ABC Company, Inc.," and the verification is signed by an officer of "XYZ Company, Inc.," the USPTO will presume that XYZ Company, Inc. is a related company properly authorized to sign on behalf of ABC Company, Inc.

The signatory should set forth his or her name and title, or state the relationship between the applicant and the person who signed the verification.

If the person signing the verification is identified as a different person than the individual named as the applicant, or as representing a different legal entity than the juristic applicant, the USPTO generally will not question whether the proper party is listed as the applicant.

Example:  If the applicant is identified as Mary Smith, an individual citizen of the U.S., and the application is signed by John Smith, the USPTO will not question whether the proper party is listed as applicant.

Example:  If the applicant is John Smith, an individual citizen of the U.S., and the application is signed by John Smith, President, XYZ, Inc., the USPTO will not question whether the proper party is listed as applicant.

If a qualified practitioner signs a verification on behalf of an applicant, the USPTO will not require a power of attorney or other documentation stating that the practitioner is authorized to sign.

This policy applies to both individual applicants and juristic applicants.

The broad definition of a "person properly authorized to sign on behalf of the applicant" in 37 C.F.R. §2.193(e)(1) applies only to verifications of facts by the applicant.  It does not apply to powers of attorney, revocations of powers of attorney, responses to Office actions, letters of express abandonment, or changes to the correspondence address.  37 C.F.R. §§2.193(e)(2), (3), and (9).

A non-attorney who is authorized to verify facts on behalf of an applicant under 37 C.F.R. §2.193(e)(1) is not necessarily entitled to sign responses to Office actions, or to authorize examiner’s amendments and priority actions.  Preparing a document, authorizing an amendment to an application, and submitting legal arguments in response to an examining attorney’s requirement or refusal of registration all constitute examples of representation of the applicant in a trademark matter.  37 C.F.R. §11.5(b)(2).  Under 5 U.S.C. §500(d) and 37 C.F.R. §11.14(e), non-attorneys may not represent a party in a trademark proceeding before the USPTO.  See TMEP §§611.03(b), 611.06 et seq., and 712 et seq. regarding signature on responses to Office actions.

The signatory must personally sign his or her name.  37 C.F.R. §§2.193(a)(1) and (c)(1).  It is unacceptable for a person to sign another person’s name to a verification pursuant to a general power of attorney.  See In re Dermahose Inc., 82 USPQ2d 1793 (TTAB 2007); In re Cowan, 18 USPQ2d 1407 (Comm’r Pats. 1990).  In a TEAS submission, the person whose name is affixed to the verification must manually enter the elements of the electronic signature.  The rules do not provide authority for an attorney to sign another person's declaration.  Dermahose, 82 USPQ2d at 1795.

The name of the person who signs a document submitted in connection with an application must be set forth in printed or typed form immediately below or adjacent to the signature, or identified elsewhere in the filing (e.g., in a cover letter or other document that accompanies the filing). 37 C.F.R. §2.193(d). If the signatory’s name is not set forth in a document, the USPTO may require that it be stated for the record. This information can be entered through a Note to the File.

In applications under §66(a) of the Act, the verified statement is part of the international registration on file at the IB.  37 C.F.R. §2.33(e).  The IB establishes that an international registration includes a signed declaration before it sends the request for extension of protection to the USPTO.  Generally, the examining attorney should not issue any inquiry regarding the authority of the signatory to verify the application.  If the applicant needs to file a request for correction of the declaration, the request should be filed with the IB.  However, if the applicant voluntarily files a substitute declaration with the USPTO, it will be examined according to the same standards used for examining any other declaration.  See TMEP §804.05 regarding verification of §66(a) applications.