1714.01(f)(i)   Situations Where the Unintentional Delay Standard Applies

The unintentional delay standard of Trademark Rule 2.66 applies only to the "failure" to respond to an examining attorney’s Office action or a notice of allowance.  See 15 U.S.C. §§1051(d)(4) and 1062(b).  This includes the failure to meet minimum filing requirements for a statement of use or request for an extension of time to file a statement of use.

The minimum filing requirements for a statement of use are listed in 37 C.F.R. §2.88(e):  (1) the fee for at least a single class of goods or services; (2) at least one specimen or facsimile of the mark as used in commerce; and (3) a verification or declaration signed by the applicant stating that the mark is in use in commerce.

The minimum filing requirements for a request for extension of time to file a statement of use are listed in 37 C.F.R. §2.89(a):  (1) a verified statement that the applicant has a continued bona fide intention to use the mark in commerce; (2) a specification of the goods or services on or in connection with which the applicant has a continued bona fide intention to use the mark in commerce; and (3) payment of the prescribed fee for at least one class of goods or services.  See also TMEP §1108.04and In re El Taurino Rest., Inc., 41 USPQ2d 1220, 1222 (Comm’r Pats. 1996).

An applicant who fails to meet the minimum filing requirements for a statement of use or request for an extension of time to file a statement of use has, in effect, not filed the statement of use or extension request.  Therefore, if the failure to meet the minimum filing requirements was unintentional, the applicant may file a petition to revive under 37 C.F.R. §2.66.

An applicant may also file a petition to revive under 37 C.F.R. §2.66 if the applicant timely files a notice of appeal from an examining attorney’s final refusal, but unintentionally fails to include the appeal fee required by 15 U.S.C. §1070.