202    Requirements for Receiving a Filing Date

Under 37 C.F.R. §2.21(a), the USPTO will grant a filing date to an application under §1 or §44 of the Trademark Act that is in the English language and contains all of the following:

  • (1) The name of the applicant;
  • (2) A name and address for correspondence;
  • (3) A clear drawing of the mark;
  • (4) A listing of the goods or services; and
  • (5) The filing fee for at least one class of goods or services.

The filing date requirements apply to both the Principal and the Supplemental Register.  Kraft Group LLC v. Harpole, 90 USPQ2d 1837 (TTAB 2009) (use in commerce is not required for receipt of a filing date for an application requesting registration on the Supplemental Register).

If an application does not satisfy all the above requirements, it will not be given a filing date.  The USPTO will notify the applicant of the reason(s) why the application was not given a filing date, and refund the application filing fee.

The applicant must provide a physical address to which paper correspondence can be mailed in order to receive a filing date.  An e-mail address and authorization to send communications by e-mail cannot be substituted for a physical address.  A post office box is acceptable.

Applications that do not meet the minimum requirements for receipt of a filing date are referred to as "informal."  See TMEP §203 regarding review for compliance with minimum filing requirements, and TMEP §§204 et seq. for information about how the USPTO handles informal applications.

In an application under §66(a) of the Trademark Act, 15 U.S.C. §1141f(a) (i.e., a request for extension of protection of an international registration to the United States), compliance with the minimum filing requirements of §66(a) of the Act will be determined by the IB prior to sending the application to the USPTO.  See TMEP §§1904 et seq. for further information about §66(a) applications.

202.01    Clear Drawing of the Mark

In a §66(a) application, the drawing must meet the requirements of the Madrid Protocol and the Common Regulations Under the Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to That Agreement, which are available on the IB’s website at http://www.wipo.int/madrid/en/.  The IB will determine whether the drawing meets these requirements before sending the application to the USPTO.  See TMEP §§1904 et seq. for further information about §66(a) applications.

Under 37 C.F.R. §2.21(a)(3), a §1 or §44 applicant must submit "a clear drawing of the mark" to receive a filing date, except in applications for registration of sound, scent, and other non-visual marks.  A separate drawing page (or digital image of a separate drawing page in an application filed through the Trademark Electronic Application System ("TEAS")) is not mandatory, but is encouraged.  See TMEP §807.09 regarding "drawings" in applications for registration of non-visual marks.

A "drawing" is simply a depiction of the mark for which registration is sought.  37 C.F.R. §2.52.  A drawing that includes multiple elements that do not comprise an identifiable mark, or that consists of wording describing the mark, does not constitute a clear drawing of the mark.

An application that includes two or more drawings displaying materially different marks does not meet the requirement for a "clear drawing of the mark."  Therefore, an application is denied a filing date if it includes two or more drawings displaying materially different marks.  See Humanoids Group v. Rogan, 375 F.3d 301, 71 USPQ2d 1745 (4th Cir. 2004).

However, if an applicant (1) submits a separate drawing page showing a mark in a paper application, (2) enters a standard character mark in the "Mark Information" field of an application filed through TEAS, or (3) attaches a .jpg file containing a mark to the "Mark Information" field of a TEAS application, and a different mark appears elsewhere in the application, the drawing page or mark shown in the "Mark Information" field on TEAS will control for purposes of determining the nature and elements of the mark.  The USPTO will grant a filing date to the application, and disregard any other mark that appears elsewhere in the application.  The applicant will not be permitted to amend the mark if the amendment is a material alteration of the mark on the drawing page in a paper application or the "Mark Information" field in a TEAS application.  In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d 1063 (Dir USPTO 2001).  See 37 C.F.R. §2.72 and TMEP §§807.14 et seq. regarding material alteration of a mark.

A specimen showing the mark does not satisfy the requirement for a drawing.  If the only depiction of the mark is on a specimen (e.g., an advertisement, a photograph of the goods, or the overall packaging), then there is no drawing, and the application will be denied a filing date.

See TMEP §§807 et seq. for additional information about the examination of drawings.

See also TMEP §204.03 regarding the examining attorney’s handling of applications that are erroneously granted a filing date.

202.02    Listing of Recognizable Goods or Services

The USPTO will deny a filing date to an application under §1 or §44 of the Trademark Act if the application does not identify recognizable goods or services.  See TMEP §1402.02 for further information.

202.03    Filing Fee for At Least One Class of Goods or Services

In an application under §1 or §44 of the Trademark Act, the applicant must pay the filing fee for at least one class of goods or services before an application can be given a filing date.  37 C.F.R. §2.21(a)(5).  The fee can be paid by credit card, check, money order, electronic funds transfer ("EFT"), or by an authorization to charge a deposit account.  37 C.F.R. §2.207.  See TMEP §§405 et seq. for additional information about fees.

The amount of the trademark application filing fee varies depending on whether the application is filed through TEAS or on paper.  An applicant has four choices.  The applicant can file:

  • A paper application at the highest fee per class, set forth in 37 C.F.R. §2.6(a)(1)(i);
  • A regular TEAS application at the lower fee per class set forth in 37 C.F.R. §2.6(a)(1)(ii);
  • A TEAS RF application (see TMEP §820) at the lower fee per class set forth in 37 C.F.R. §2.6(a)(1)(iii); or
  • A TEAS Plus application (see TMEP §819 et seq.) at the lowest fee per class, set forth in 37 C.F.R. §2.6(a)(1)(iv).

See TMEP §§819 et seq. regarding TEAS Plus.  See also notices at 70 Fed. Reg. 2952 (Jan. 19, 2005)  and 70 Fed. Reg. 38768 (July 6, 2005).  The current fee schedule is available on the USPTO website at http://www.uspto.gov.

The complete fee for at least a single class must be submitted with the application as filed.  Partial or piecemeal fee payments are unacceptable and will be returned.

If an application does not include a filing fee for at least a single class, the USPTO will deny a filing date.  In re Buckhead Marketing & Distribution, Inc., 71 USPQ2d 1620 (Dir USPTO 2004); In re Paulsen, 35 USPQ2d 1638 (Comm’r Pats. 1995).  If a filing date has been granted when the USPTO discovers that the applicant has not paid the filing fee for at least a single class, the filing date will be cancelled.  See TMEP §204.01.

See TMEP §§202.03(a) and 405.06 regarding payments that are refused or charged back by financial institutions, and TMEP §405.03 regarding deposit accounts.

The filing fee for a §66(a) application will be sent to the USPTO by the IB, pursuant to Article 8 of the Madrid Protocol.  Generally, the examining attorney should not require additional fees during examination, except where the application is divided due to a change in ownership with respect to some but not all of the goods/services.  See TMEP §810 for further information about application filing fees, and TMEP §§1904 et seq. for further information about §66(a) applications.

202.03(a)    Fee Payment Refused or Charged Back By Financial Institution

Where a check submitted as payment of an application filing fee is returned to the USPTO unpaid, or an EFT or credit card payment is refused or charged back by a financial institution, the application is treated as though the fee had never been paid.

If the original application was accompanied by an authorization to charge fee deficiencies to a deposit account (37 C.F.R. §2.208), then the application filing fee and the processing fee required by 37 C.F.R. §2.6(b)(12) (see TMEP §§202.03(a)(i) and 405.06) are charged to the deposit account, and the original filing date remains unchanged.

However, if the original application was not accompanied by an authorization to charge deficient fees to a deposit account that has sufficient funds to cover the fee, and the applicant has not paid the filing fee for at least one class of goods or services, the filing date is void and will be cancelled.  In re Paulsen, 35 USPQ2d 1638 (Comm’r Pats. 1995).

In some cases, the applicant will have resubmitted the fee before the USPTO discovers that the payment was refused.  In these cases, the USPTO will change the filing date to the date when the fee for a single class of goods or services was resubmitted.

In a multiple-class application, if the fee for at least a single class has been paid, but the payment of the filing fee for additional class(es) is refused, the filing date of the application is not affected.  The applicant must:  (1) resubmit the fee for the additional class(es), or delete the additional class(es); and (2) pay the processing fee required by 37 C.F.R. §2.6(b)(12).  The applicant must pay the processing fee even if the applicant chooses to delete the additional class(es).

See TMEP §§202.03(a)(i) and 405.06 regarding payments refused by financial institutions, and TMEP §204.03 regarding the examining attorney’s handling of applications that are erroneously granted a filing date.

202.03(a)(i)    Processing Fee for Payment Refused or Charged Back By Financial Institution

There is a fee for processing any payment refused (including a check returned unpaid) or charged back by a financial institution.  37 C.F.R. §2.6(b)(12).  See TMEP §405.06.  However, this is not a filing date requirement.  If an applicant resubmits the filing fee without paying the processing fee, the USPTO will give the application a filing date as of the date of resubmission, and the examining attorney will require submission of the processing fee during examination.