305.03 Priority Mail Express®

37 C.F.R. §2.198. Filing of correspondence by Priority Mail Express®.

(a) The filing date of correspondence submitted under this section is the date of deposit with the USPS, as shown by the "date accepted" on the Priority Mail Express® label or other official USPS notation.
(b) If the USPS deposit date cannot be determined, the filing date is the date the Office receives the submission.
(c) If there is a discrepancy between the filing date accorded by the Office to the correspondence and the "date accepted," the party who submitted the correspondence may file a petition to the Director under § 2.146(a)(2) to accord the correspondence a filing date as of the "date accepted." The petition must:
(1) Be filed within two months after the date of deposit;
(2) Include a true copy of the Priority Mail Express® mailing label showing the "date accepted," and any other official notation by the USPS relied upon to show the date of deposit; and
(3) Include a verified statement attesting to the facts of the original mailing.
(d) If the party who submitted the correspondence can show that the "date accepted" was incorrectly entered or omitted by the USPS, the party may file a petition to the Director under § 2.146(a)(2) to accord the correspondence a filing date as of the date the correspondence is shown to have been deposited with the USPS. The petition must:
(1) Be filed within two months after the date of deposit;
(2) Include proof that the correspondence was deposited in the Priority Mail Express® Post Office to Addressee service prior to the last scheduled pickup on the requested filing date. Such proof must be corroborated by evidence from the USPS or evidence that came into being within one business day after the date of deposit; and
(3) Include a verified statement attesting to the facts of the original mailing.
(e) If correspondence is properly addressed to the Office pursuant to § 2.190 and deposited with sufficient postage in the Priority Mail Express® Post Office to Addressee service of the USPS, but not received by the Office, the party who submitted the correspondence may file a petition to the Director under § 2.146(a)(2) to consider such correspondence filed in the Office on the USPS deposit date. The petition must:
(1) Be filed within two months after the date of deposit;
(2) Include a copy of the previously mailed correspondence showing the number of the Priority Mail Express® mailing label thereon; and
(3) Include a verified statement attesting to the facts of the original mailing.

305.03(a) Filing Date When Priority Mail Express® Is Used

For permitted paper filings (see TMEP §301.02), Trademark Rule 2.198 provides a procedure for obtaining a filing date as of the date that correspondence is deposited as Priority Mail Express® with the USPS, as shown by the "date accepted" on the Priority Mail Express® label or other official USPS notation. 37 C.F.R. §2.198(a).

If the USPS deposit date cannot be determined, the filing date is the date the USPTO receives the submission. 37 C.F.R. §2.198(b).

305.03(b) Discrepancy between Filing Date and "Date Accepted"

If there is a discrepancy between the filing date given by the USPTO to the correspondence and the "date accepted," the party who submitted the correspondence may file a petition to the Director under 37 C.F.R §2.146(a)(2) to have the correspondence be given a filing date as of the "date accepted." 37 C.F.R. §2.198(c).

The petition must:

(1) Be filed within two months after the date of deposit;
(2) Include a true copy of the Priority Mail Express® mailing label showing the "date accepted" and any other official notation by the USPS relied upon to show the date of deposit; and
(3) Include a verified statement attesting to the facts of the original mailing.

37 C.F.R. §2.198(c)(1)-(3).

305.03(c) Incorrectly Entered "Date Accepted"

If the party who submitted the correspondence can show that the "date accepted" was incorrectly entered or omitted by the USPS, the party may file a petition to the Director under 37 C.F.R. § 2.146(a)(2) to have the correspondence be given a filing date as of the date the correspondence is shown to have been deposited with the USPS. 37 C.F.R. §2.198(d).

The petition must:

(1) Be filed within two months after the date of deposit;
(2) Include proof that the correspondence was deposited in the Priority Mail Express® Post Office to Addressee service prior to the last scheduled pickup on the requested filing date. Such proof must be corroborated by evidence from the USPS or evidence that came into being within one business day after the date of deposit; and
(3) Include a verified statement attesting to the facts of the original mailing.

37 C.F.R. §2.198(d)(1)-(3).

305.03(d) Correspondence Not Received by the USPTO

If correspondence is properly addressed to the USPTO pursuant to 37 C.F.R. §2.190 (see TMEP §305.01) and deposited with sufficient postage in the Priority Mail Express® Post Office to Addressee service of the USPS, but not received by the USPTO, the party who submitted 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 USPS deposit date. 37 C.F.R. §2.146(e).

The petition must:

(1) Be filed within two months after the date of deposit;
(2) Include a copy of the previously mailed correspondence showing the number of the Priority Mail Express® mailing label thereon; and
(3) Include a verified statement attesting to the facts of the original mailing.

37 C.F.R. §2.198(e)(1)-(3).

305.03(e) Certificate of Mailing under 37 C.F.R. §2.197 for Documents Sent by Priority Mail Express®

The certificate of mailing procedure of 37 C.F.R. §2.197 may be used for documents sent by Priority Mail Express® as well as documents sent by first-class mail. Correspondence sent by Priority Mail Express® is deemed to meet the requirements of 37 C.F.R. §2.197(a)(1) for postage as first-class mail, because the postage for Priority Mail Express® exceeds the postage required for first-class mail. However, to use the certificate of mailing procedure for documents mailed by Priority Mail Express®, the filer must place a certificate meeting the requirements of 37 C.F.R §2.197(a)(2) on the document prior to mailing. See TMEP §§305.02–305.02(h) for further information about the certificate of mailing procedure.

The following wording is suggested for a certificate of mailing for a paper trademark document when correspondence is sent by Priority Mail Express®. See TMEP §305.01 regarding mailing address for this type of document and others.

Sample certificate of mailing for express mail with the following 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 the Number Here], is being deposited with the U.S. Postal Service as Priority Mail Express® 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 signatory's title, the signature, and the date.

When correspondence to which 37 C.F.R. §2.198(a) applies is placed in a Priority Mail Express® drop box after the box has been cleared for the last time on a given day, it is considered to have been deposited as of the date of receipt indicated on the Priority Mail Express® mailing label by the USPS employee. See Communications with the Patent and Trademark Office, 61 Fed. Reg. 56,439, 56,445 (Nov. 1, 1996).