305.02    Certificate of Mailing Procedure

37 C.F.R. §2.197  Certificate of mailing.

  • (a) The filing date of correspondence submitted under this section is the date of deposit with the USPS if the correspondence:
  • (1) Is addressed as set out in § 2.190 and deposited with the USPS with sufficient postage as first-class mail; and
  • (2) Includes a certificate of mailing for each piece of correspondence that:
  • (i) Attests to the mailing and the address used;
  • (ii) Includes the name of the document and the application serial number or USPTO reference number, if assigned, or registration number to which the document pertains;
  • (iii) Is signed separately from any signature for the correspondence by a person who has a reasonable basis to expect that the correspondence would be mailed on the date indicated; and
  • (iv) Sets forth the date of deposit with the USPS.
  • (b) If correspondence is mailed in accordance with paragraph (a) of this section, but not received by the Office, the party who mailed such correspondence may file a petition to the Director under § 2.146(a)(2) to consider such correspondence filed in the Office on the date of deposit with the USPS. The petition must:
  • (1) Be filed within two months after the date of mailing;
  • (2) Include a copy of the previously mailed correspondence and certificate; and
  • (3) Include a verified statement attesting to the facts of the original mailing.
  • (c) If the certificate of mailing does not meet the requirements of paragraph (a)(2) of this section, the filing date is the date the Office receives the submission.

For permitted paper filings (see TMEP §301.01), Trademark Rule 2.197  provides a "certificate of mailing" procedure to avoid lateness due to mail delay with the U.S. Postal Service (USPS).  37 C.F.R. §2.197. Under this procedure, correspondence is considered to be timely even if received after the due date, if the correspondence was:  

  • (1) addressed as set out in 37 C.F.R. §2.190  (see TMEP §305.01);
  • (2) deposited with the USPS as first-class mail (see TMEP §305.02(b)) before the expiration of the filing period; and
  • (3) accompanied by a certificate of mailing for each piece of correspondence. See TMEP §305.02(c) for a list of information that must be provided in the certificate of mailing.

37 C.F.R. §2.197(a) 

Filers must retain a copy of the correspondence, including the signed and dated certificate. See In re Sasson Licensing Corp., 35 USPQ2d 1510, 1512 (Comm’r Pats. 1995).

See TMEP §305.02(a)–(h) regarding the certificate of mailing procedure.

305.02(a)    When Certificate of Mailing Procedure May Be Used

The certificate of mailing procedure may be used for any trademark correspondence that may be filed on paper. See TMEP §301.02 regarding the limited exceptions when paper submissions may be submitted.

305.02(b)    Mailing Requirements

The correspondence must be properly addressed (see TMEP §305.01 for mailing addresses), and must be deposited with the U.S. Postal Service (USPS) with sufficient postage as first-class mail. 37 C.F.R. §2.197(a)(1).

Since first-class mail services of the USPS are not available in foreign countries, the certificate of mailing procedure may not be used for sending mail to the USPTO from a foreign country.

305.02(c)    Location and Form of Certificate

The certificate of mailing must provide the following for each piece of correspondence submitted:  

  • (1) attest to the mailing and the address used;
  • (2) include the name of the document and the application serial or registration number or USPTO reference number, if assigned, to which the document pertains;
  • (3) be signed separately from any signature for the correspondence;
  • (4) be signed by a person who has a reasonable basis to expect the correspondence would be mailed on the date indicated; and
  • (5) state the date of deposit in the mail with the USPS, which must be a date within the set filing period (this includes the last day of the period, or the succeeding day that is not a Saturday, Sunday, or Federal holiday within the District of Columbia when the last day of the period falls on a Saturday, Sunday, or Federal holiday within the District of Columbia).  

37 C.F.R. §2.197(a)(2).

The best location for the certificate of mailing is at the beginning of the correspondence to which it pertains, typed in its entirety. The certificate of mailing should be separated from contents of the correspondence that are on the same page.  Several blank lines between the contents and the certificate will suffice.

If the certificate of mailing does not fit on the correspondence to which it pertains, the certificate may be placed on a separate sheet of paper that is attached securely to the correspondence. The separate sheet may be a cover letter, with the certificate placed at the bottom of the letter and signed separately from the letter. If there is any doubt concerning the correspondence to which a certificate of mailing on a separate sheet relates, the USPTO will not accept the certificate.

When correspondence for more than one application or registration is mailed in a single envelope, each item of correspondence must have its own certificate of mailing. Similarly, when more than one type of correspondence is submitted in connection with the same application, each item of correspondence must have its own certificate of mailing.

It is suggested that the certificate be signed by the applicant, registrant, or the party involved in the proceeding, or by the attorney for such person.  If someone else signs, it should be a responsible person in a position to know that the mail will be deposited on the date specified. See 37 C.F.R. §2.197(a)(2)(iii).

The USPTO accepts the date of deposit stated in the certificate of mailing on the basis of the statement of personal knowledge.  The USPTO does not normally inspect the postmark on the envelope.

305.02(d)    Wording of Certificate of Mailing

The following wording is suggested for a certificate of mailing for a paper trademark document. See TMEP §305.01 regarding the mailing address for this type of document and others.

Sample certificate of mailing with the text "I hereby certify that this correspondence, [state the name of the document], which pertains to U.S. Application Serial/Registration No. or USPTO Reference No. [Enter Number Here], is being deposited with the U.S. Postal Service as first-class mail in an envelope addressed to: Commissioner for Trademarks, P.O. Box 1451, Alexandria, Virginia 22313-1451 on the date shown below:" and lines for the typed or printed name of the signatory, the signature, the signatory's title, and the date.

305.02(e)    Effect of Certificate of Mailing

The filing date assigned to paper correspondence submitted with a certificate of mailing is the date of its deposit with the USPS when filed pursuant to the requirements of 37 C.F.R. §2.197. 37 C.F.R. §2.195(b)(2). If the certificate of mailing does not meet the requirements of 37 C.F.R. §2.197(a)(2), the filing date is the date the USPTO receives the submission. 37 C.F.R. §2.197(c).

See TMEP §§206–206.04 regarding changes in the effective filing date of an application.

The USPTO does not retain the envelopes in which material is received or record the date of the postmark.

305.02(f)    Correspondence Mailed Pursuant to 37 C.F.R. §2.197 but Not Received by USPTO

If permitted paper correspondence (see TMEP §301.01) mailed with a certificate of mailing is not received by the USPTO, the party who mailed the correspondence may file a petition to the Director under 37 C.F.R. §2.146(a)(2)  to consider the correspondence filed in the USPTO on the date of deposit with the USPS.

The petition must:

  • (1) Be filed within two months after the date of mailing;
  • (2) Include a copy of the previously mailed correspondence and certificate of mailing; and
  • (3) Include a verified statement attesting to the facts of the original mailing.

37 C.F.R. §2.197(b). See TMEP §§1702–1708 regarding petitions under 37 C.F.R. §2.146.

The two-month time period for notifying the USPTO begins to run from the date that the party who filed the correspondence became aware that the USPTO has no evidence of receipt of the correspondence, unless the USPTO has issued a written action, such as a notice of abandonment or cancellation. In such situations, the issue date of the USPTO written action will serve as the starting point for measuring timeliness. See 37 C.F.R. §§2.146(d), 2.197(b)(1); TMEP §1705.04.

305.02(g)    Correspondence Deposited as First-class Mail Pursuant to 37 C.F.R. §2.197 and Returned by the U.S. Postal Service

Correspondence must be deposited with the USPS as first-class mail in compliance with any and all applicable requirements of the USPS to be considered "[d]eposited with the USPS," within the meaning of 37 C.F.R. §2.197(a)(1).  Therefore, correspondence returned by the USPS as not mailed in compliance with USPS requirements, including concerning mail weighing more than the USPS maximum permissible weight, is not entitled to any benefit under 37 C.F.R. §2.197.  

305.02(h)    Certificate of Mailing Requirements Strictly Enforced

The requirements of 37 C.F.R. §2.197  are strictly enforced, and the USPTO denies petitions to consider a document timely filed as of the date on the certificate if a party fails to comply with these requirements.

A party’s inadvertent failure to comply with the requirements of a rule is not considered an extraordinary situation that would warrant waiver of a rule on petition under 37 C.F.R. §2.146(a)(5)  or 37 C.F.R. §2.148.  See Honigsbaum v. Lehman, 903 F. Supp. 8, 37 USPQ2d 1799 (D.D.C. 1995) (finding Commissioner did not abuse discretion in refusing to waive requirements of 37 C.F.R. §1.10(c) and grant filing date to patent application, where applicant failed to produce "Express Mail" customer receipt or any other evidence that application was actually deposited with USPS as "Express Mail"), aff’d mem., 95 F.3d 1166 (Fed. Cir. 1996); In re Sasson Licensing Corp., 35 USPQ2d 1510, 1512 (Comm’r Pats. 1995) (noting that failure to retain an executed hard copy of documents filed with the USPTO is not an extraordinary circumstance that would justify waiver of 37 C.F.R. §1.8); Gustafson v. Strange, 227 USPQ 174 (Comm’r Pats. 1985) (finding counsel’s unawareness of the provisions of 37 C.F.R. §1.8 is not an extraordinary situation warranting waiver of the rule); In re Chicago Historical Antique Auto. Museum, Inc., 197 USPQ 289 (Comm’r Pats. 1978) (finding lateness caused by mailing documents on the last day of the filing period is not an extraordinary situation justifying waiver of the rules, because certificate of mailing procedure under 37 C.F.R. §1.8 was available to petitioner).