1715.03(b) Timely Filing of Letter of Protest
The most appropriate time for filing a letter of protest is before publication of a mark, because the purpose of the letter of protest is to assist the USPTO in the examination of an application for registration. However, circumstances may preclude filing during that period in certain cases. For example, the protestor may not be aware of an application until publication, or the evidence relevant to registrability may not be available until after publication.
Letters of protest filed more than 30 days after publication are generally denied as untimely, because a letter of protest filed after publication may delay the registration process significantly. In re BPJ Enter's. Ltd., 7 USPQ2d 1375, 1378 (Comm’r Pats. 1988). This applies to all applications, including intent-to-use applications under 15 U.S.C. §1051(b). In re G. Heileman Brewing Co., Inc., 34 USPQ2d 1476, 1478 (Comm’r Pats. 1994).
Exceptions to the 30-day rule are made only in special circumstances, where the protestor could not earlier have obtained the information provided in the letter. In re Pohn, 3 USPQ2d 1700, 1703 (Comm’r Pats. 1987).
Filing a request for extension of time to oppose does not extend the 30-day deadline for filing a letter of protest.
The letter of protest procedure applies only to pending applications. The Director has no authority to cancel a registration in order to consider a letter of protest. Therefore, a letter of protest will be denied as untimely if the mark registers before issuance of the decision on the letter. Once the mark has registered, the protestor’s remedy is to file a petition to cancel with the Board.