202    Requirements for Receiving a Filing Date

The USPTO will grant a filing date to an application under Trademark Act §1 or §44 that is filed through the Trademark Electronic Application System (TEAS), is written in the English language, and contains all of the following:

  • (1) The name, mailing address, and email address of each applicant (see TMEP §803.05 (b) regarding applicant’s e-mail address);
  • (2) If applicant is represented by a qualified U.S. attorney, the attorney’s name, postal address, and email address (see TMEP §811 regarding attorney identification information);
  • (3) A clear drawing of the mark (see TMEP §202.01);
  • (4) A listing of recognizable goods or services (see TMEP §202.02); and
  • (5) The filing fee required under 37 C.F.R §2.6  for at least one class of goods or services (see TMEP §202.03).

37 C.F.R. §2.21(a).

These filing date requirements apply to both Principal and Supplemental Register applications.   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).

Generally, if an application does not satisfy all the above requirements, it will not be given a filing date. 37 C.F.R. §2.21(a)-(b). 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. However, if an applicant is a treaty-exempt filer (see TMEP §301.02(a)), the applicant is not required to file through TEAS and/or provide an email address in order to receive a filing date. 37 C.F.R. §2.21(c).

A post office box submitted as the applicant’s mailing address may be sufficient for an application to receive a filing date, but will generally not be accepted as satisfying the requirement for the applicant’s domicile address, which is required for a complete application. See 37 C.F.R. §§2.22(a),37 C.F.R. §2.32(a)(2); TMEP §803.05(a)(1).

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 §§204-204.03 for information about how the USPTO handles informal applications.

Section 66(a) Applications. Compliance with the minimum filing requirements of §66(a) are determined by the IB prior to sending the application to the USPTO.  See 15 U.S.C. §1141f(b); 37 C.F.R. §7.26; TMEP §1904.01.

202.01    Clear Drawing of the Mark

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. See TMEP §807.09 regarding "drawings" in applications for registration of sound, scent, or non-visual marks.

A "drawing" is 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 Grp. v. Rogan, 375 F.3d 301, 71 USPQ2d 1745 (4th Cir. 2004).

The drawing is provided in a TEAS application form using the "Mark Information" field. If an applicant (1) enters a standard character mark in the "Mark Information" field of an application filed through TEAS, or (2) 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 mark shown in the "Mark Information" field will control for purposes of determining the nature and elements of the mark. See In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d 1063, 1064 (Dir. USPTO 2001). The USPTO will grant a filing date to the application if it otherwise meets the minimum filing requirements, and disregard any other mark that appears elsewhere in the application. See Id. at 1064. The applicant will not be permitted to amend the mark if the amendment is a material alteration of the markin the "Mark Information" field in a TEAS application. See 37 C.F.R. §2.72  and TMEP §§807.14-807.14(f) regarding material alteration of a mark.

A specimen showing use of the applied-for 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 of the mark, and the application will be denied a filing date.

Section 66(a) Applications. In a §66(a) application, the drawing must meet the requirements of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol) and the Regulations Under the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, which are available on the IB’s website at https://www.wipo.int/madrid/en/. The IB will determine whether the drawing meets these requirements before sending the application to the USPTO. See TMEP §1904.02(k) for further information.

Permitted Paper Applications. If an applicant submits a separate drawing page showing a mark and a different mark appears elsewhere in the paper application, the drawing page will control for purposes of determining the nature and elements of the mark. In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d at 1064. See TMEP §301.02 regarding the limited exceptions for paper submissions.

The USPTO will grant a filing date to the application if it otherwise meets the minimum filing requirements, and disregard any other mark that appears elsewhere in the application. In re L.G. Lavorazioni Grafite S.r.l., 61 USPQ2d at 1064. The applicant will not be permitted to amend the mark if the amendment is a material alteration of the mark on the drawing page. See 37 C.F.R §2.72  and TMEP §§807.14-807.14(f) regarding material alteration of a mark.

See TMEP §§807-807.18 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 (for permitted paper filings (see TMEP §301.01), electronic funds transfer (EFT), or an authorization to charge a deposit account.  37 C.F.R. §2.207.  See TMEP §§405-405.06 for additional information about fees.

Generally, an applicant must file an application using one of the following TEAS filing options:

See 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 https://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 Mktg. & 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 §405.03 regarding deposit accounts.

Section 66(a) Applications. The filing fee for a §66(a) application is 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 §§1904-1904.15(c) for further information about §66(a) applications.

Permitted Paper Applications. If permitted, an applicant may file a paper application at the per class filing fee set forth in 37 C.F.R. §2.6(a)(1)(i). See TMEP §301.02 regarding the limited exceptions for paper submissions.

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

Where 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)(10)  (see TMEP §§202.03(a)(i), 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)(10).  The applicant must pay the processing fee even if the applicant chooses to delete the additional class(es).

Permitted Paper Applications. If an applicant is permitted to file a paper application (see TMEP §301.01), and a check submitted as payment of an application filing fee is returned to the USPTO unpaid, the application is treated as though the fee had never been paid unless 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)(10)  (see TMEP §§202.03(a)(i), 405.06) are charged to the deposit account, and the original filing date remains unchanged.

See TMEP §202.03(a)(i) and §405.06 regarding payments refused by financial institutions, and §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 for a permitted paper filing (see TMEP §301.01) or charged back by a financial institution.  37 C.F.R. §2.6(b)(10) ); see TMEP §405.06.  However, payment of the processing fee 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.