1711    Review of Denial of Filing Dates

If an application is denied a filing date and the applicant wants the filing date restored, the usual procedure is to file a petition to the Director under 37 C.F.R. §2.146.

However, the applicant may request restoration of the filing date without a formal petition in the following situations:

  • TEAS "Success" page printout shows receipt of application. Although the USPTO has no record of receipt of the application, the applicant presents proof that a complete application was filed through the Trademark Electronic Application System (TEAS), in the form of a copy of a TEAS "Success" page confirming receipt of the application (see TMEP §303.02(a)) or a copy of an email confirmation issued by the USPTO that includes the date of receipt and a summary of the TEAS submission. Trademark records must show receipt of at least one filing fee on the requested filing date.
  • Application on its face met filing date requirements under 37 C.F.R. §2.21  even though the application was initially denied a filing date.

In these situations, a staff attorney or paralegal in the Office of the Deputy Commissioner for Trademark Examination Policy may restore the original filing date without a formal petition or a petition fee.  In all other circumstances, the applicant must file a formal petition to the Director, including the petition fee required by 37 C.F.R. §2.6.

Procedure for Filing Request.  In any request to restore an application filing date, the applicant should first refile the application using TEAS and pay the application filing fee required by 37 C.F.R. §2.6(a)(1). The application filing fee must be included even if the applicant has not yet received a refund of the fee previously paid.  After the applicant receives a new application serial number, the applicant should file a TEAS Request to Restore Filing Date.

Time Limit for Filing Request. All requests to restore filing dates, whether made by formal petition or informal request, must be filed promptly.  If the USPTO issues a notice advising the applicant of the denial or cancellation of the filing date, the request to restore the filing date must be filed within two months of the issue date of the action, or it will be denied as untimely.  37 C.F.R. §2.146(d). Although applicants have two months from the issue date of this notice to file a request to restore the original filing date, it is recommended that an applicant promptly refile the application, and file the request to restore the filing date immediately upon receipt of the new serial number, to minimize the delay in receiving a filing date, and to reduce the impact on third parties who may rely on the current filing date information in the Trademark database.

Furthermore, applicants must exercise due diligence in monitoring the status of applications.  37 C.F.R. §2.23(d)(1); TMEP §§108.03, 1705.05.  That is, an applicant must check the status of a pending application every six months between the filing date of the application and issuance of a registration.  37 C.F.R. §2.23(d)(1).

Evidence of Missing Element Required.  If the USPTO denies a filing date due to the omission of an element required by 37 C.F.R. §2.21, and the applicant declares that the missing element was in fact included with the application as filed, the Director will not grant a petition to restore or reinstate the filing date unless:  (1) the applicant provides evidence that the element was received in the USPTO on the requested filing date; or (2) there is an image of the element in the USPTO’s Trademark database.