AD24 Final Rule

Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Rules and Regulations
Dated: November 12, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2020–25361 Filed 11–16–20; 8:45 am]
BILLING CODE 5001–06–P

DEPARTMENT OF COMMERCE
Patent and Trademark Office
37 CFR Parts 2 and 7
[Docket No. PTO–T–2019–0027]
RIN 0651–AD42

Trademark Fee Adjustment
United States Patent and
Trademark Office, Department of
Commerce.
ACTION: Final rule.
AGENCY:

The United States Patent and
Trademark Office (Office or USPTO) is
setting or adjusting certain trademark
fees, as authorized by the Leahy-Smith
America Invents Act (AIA), as amended
by the Study of Underrepresented
Classes Chasing Engineering and
Science Success Act of 2018 (SUCCESS
Act). The changes will allow the USPTO
to continue to recover the prospective
aggregate costs of strategic and
operational trademark and Trademark
Trial and Appeal Board (TTAB or
Board) goals (based on workload
projections included in the USPTO
fiscal year (FY) 2021 Congressional
Justification), including associated
administrative costs. They will also
further USPTO strategic objectives by
better aligning fees with costs,
protecting the integrity of the trademark
register, improving the efficiency of
agency processes, and ensuring
financial sustainability to facilitate
effective trademark operations. USPTO
has weighed carefully current economic
conditions and the potential hardship
that the fee increase could create for
businesses and individuals. The Office
paused development of the fee rule
because of uncertainty about the
economy earlier this year. The latest
economic data point to continued
recovery in many sectors of the
economy. Because of this and the
relatively small annual cost to
businesses and individuals from
USPTO’s trademark applications and
maintenance fees, the Office has
decided to finalize the fee rule for
implementation in January 2021.
DATES: This rule is effective on January
2, 2021.
FOR FURTHER INFORMATION CONTACT:
Catherine Cain, Office of the Deputy
SUMMARY:

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Commissioner for Trademark
Examination Policy, at 571–272–8946,
or by email at TMPolicy@uspto.gov.
SUPPLEMENTARY INFORMATION: The
USPTO conducted a fee review in FY
2019 that formed the basis for this
regulatory process to adjust and set new
trademark user fees. While trademarkrelated costs of operations have risen,
trademark fees have not changed since
January 2017. The revenue and
workload assumptions in this rule are
based on the assumptions found in the
FY 2021 Congressional Justification (i.e.,
the USPTO’s FY 2021 budget
submission to Congress). However,
projections of aggregate revenues and
costs are based on point-in-time
estimates, and the circumstances
surrounding these assumptions can
change quickly. Notably, since the FY
2021 Congressional Justification was
published, some fee collections have
been lower than anticipated, due to
lower than expected post-registration
and Madrid filings.
Although economic circumstances
have changed substantially since the FY
2021 budget was developed, the USPTO
determined it remains the most
appropriate starting point for
developing this Final Rule. First, the
USPTO’s projections of aggregate
revenues and costs are necessarily
estimates that can change substantially
from one point in time to the next due
to numerous factors outside the
USPTO’s control, including cyclical
economic changes or exogenous shocks,
such as COVID–19, changes in the laws
governing USPTO revenues or
expenditures, and other events.
Nevertheless, the USPTO has
historically used its most recent budget
assumptions when setting fees because
they are the most recent complete
evaluation of the USPTO’s budget
expectations and requirements, and they
provide assumptions for stakeholders to
use when formulating their comments.
Those projections were developed in
late calendar year 2019, prior to the
COVID–19 outbreak, and they assumed
continuing stable economic growth, not
the sharp economic downturn and
rebound of 2020.
As part of the multi-year fee-setting
process, the Trademark Public Advisory
Committee (TPAC) held a public
hearing at the USPTO on September 23,
2019. The Office considered and
analyzed all comments, advice, and
recommendations received from the
TPAC in proposing the fees set forth in
the notice of proposed rulemaking
(NPRM) published in the Federal
Register on June 19, 2020, at 85 FR
37040. In formulating this rule, the

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USPTO considered the state of the U.S.
economy, the operational needs of the
agency, and public comments submitted
pursuant to the NPRM and made
adjustments to the substance of this rule
based on these considerations.
The USPTO has considered the state
of the U.S. economy, the operational
needs of the agency, and the comments
and advice received from the public
during the 45-day comment period. The
current economic conditions illustrate
the need for the increases set forth in
this rule. The majority of USPTO’s
trademark revenue comes from new
applications, but the initial costs to
examine applications exceed the
revenues from those applications. These
examination costs have been increasing
over the years while the USPTO has
kept filing fees low enough to encourage
broad public participation in the
trademark system by offsetting
examination costs with revenues
generated with intent-to-use (ITU) and
maintenance filings. Despite this
balancing of front- and back-end costs,
the USPTO has been observing multiyear consistent trends that have begun
to adversely affect this model. The
USPTO is receiving record levels of new
trademark application filings, carrying
with them larger front-end examination
costs, while the percentage of ITU and
maintenance filings are decreasing,
resulting in less back-end revenue. With
larger net costs that are not being offset
by back-end revenue, the USPTO would
be unable to maintain an operating
reserve, which puts the Office on an
unsustainable funding model.
The USPTO has observed these trends
taking place whether the economy is
doing well or facing turmoil, but the
present situation is particularly
challenging in light of the impact of the
pandemic and its effect on the economy
and filings. In particular, over the last
six months, the USPTO has experienced
a surge in new applications while
maintenance filings continue to be
impacted by lower rates of payment
from one-time filers and individual
applicants. The surge is also
undermining the other traditional
revenue sources that have historically
offset front-end costs, such as ITU, since
the USPTO is receiving more use-based
applications, especially from foreign
filers. While the USPTO is observing a
surge in filings at present, given past
experience, we expect a future decline
to bring filings in line with the
underlying economic dynamism.
Although the timing and the magnitude
of a future correction may be difficult to
anticipate with complete accuracy,
given past experience, the USPTO
anticipates that a correction in filing

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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Rules and Regulations

levels could generate funding shortfalls
that quickly drain our reserves and
affect our operations and financial
stability.
The USPTO received some comments
urging the Office not to raise any fees.
As noted below, in the discussion of the
Regulatory Flexibility Act, one
regulatory alternative that was
considered was to leave all trademark
fees as currently set. This alternative
was rejected because, due to changes in
demand for certain services and rising
costs described herein, the Office has
determined that a fee increase is needed
to meet future budgetary requirements
as described in the FY 2021
Congressional Justification. As
discussed further below, the alternative
of making no changes to trademark fees
would not have achieved the goals of
this rulemaking. Those goals are to
assist in promoting access to the
trademark system, protect the integrity
of the register, and promote the
efficiency of the trademark registration
process by incentivizing: (1)
Maintenance of registrations for goods
and services for which marks are
actually in use, (2) more timely filing of
applications and other documents, and
(3) faster resolution of appeals and inter
partes proceedings at the TTAB.
USPTO has weighed carefully current
economic conditions and the potential
hardship that the fee increase could
create for businesses and individuals.
The USPTO has undertaken many
efforts to provide various types of relief,
including deadline extensions and fee
postponements. Additionally, in the FY
2021 Congressional Justification,
implementation of the fee rule was
slated for August of 2020. Considering
the impact of the pandemic, uncertainty
about the economy, and stakeholder
feedback, the USPTO paused
development of the fee rule over the
summer of 2020. The latest economic
data point to continued recovery in
many sectors of the economy. Because
of this and the relatively small annual
cost to businesses and individuals from
USPTO’s trademark applications and
maintenance fees, the Office has
decided to finalize the fee rule for
implementation in January 2021.
I. Purpose: The USPTO protects
consumers and provides benefits to
businesses by effectively and efficiently
carrying out the trademark laws of the
United States. As a fee-funded agency,
appropriate fees are critically important
for the USPTO to maintain the quality
and timeliness of examination and other
services, and to stabilize and modernize
aging information technology (IT)
infrastructure on which the Office and
its customers rely. The fee schedule

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enacted in this rulemaking is estimated
to provide aggregate revenue to recover
the USPTO’s aggregate estimated future
costs and ensure the USPTO can
achieve strategic and operational goals.
These goals include effectively using
resources to maintain low trademark
pendency and high quality, fostering
business effectiveness, stabilizing and
modernizing trademark IT systems,
continuing programs for stakeholder
and public outreach, enhancing
operations of the TTAB, and ensuring
financial sustainability to facilitate
effective trademark operations.
Section 10 of the AIA authorizes the
Director of the USPTO (Director) to set
or adjust by rule any fee established,
authorized, or charged under the
Trademark Act of 1946, 15 U.S.C. 1051
et seq., as amended (the Trademark Act
or the Act) for any services performed
by, or materials furnished by, the Office.
See section 10 of the AIA, Public Law
112–29, 125 Stat. 284, 316–17, as
amended by the SUCCESS Act, Public
Law 115–273, 132 Stat. 4158. Section 10
of the AIA prescribes that trademark
fees may be set or adjusted only to
recover the aggregate estimated costs to
the USPTO for processing, activities,
services, and materials related to
trademarks, including administrative
costs to the USPTO with respect to such
trademark and TTAB operations. This
authority includes the flexibility to set
individual fees to advance key policy
objectives. Thus, the Director may set
individual fees at, below, or above their
respective associated costs, while taking
into account the aggregate estimated
costs to the USPTO.
The USPTO estimates, based on the
assumptions found in the FY 2021
Congressional Justification, that the
additional aggregate revenue derived
from the fee schedule set forth here will
recover the future costs of implementing
strategic and operational goals,
including the cost of necessary IT
stabilization and modernization
activities. Also, the additional revenue
will allow the USPTO to achieve
sustainable funding by gradually
building the operating reserve, which
mitigates the risk of immediate
unplanned financial disruptions that
can adversely affect pendency and
quality. Based on the assumptions
found in the FY 2021 Congressional
Justification, the Office estimates
reaching the optimal six-month
trademark operating reserve level in FY
2025. However, projections of aggregate
revenues and costs are based on pointin-time estimates, and the
circumstances surrounding these
assumptions can change quickly.
Notably, since the FY 2021

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Congressional Justification was
published, some fee collections have
been lower than anticipated, due to
lower than expected post-registration
and Madrid filings.
II. Summary of Major Provisions: The
USPTO is setting or adjusting trademark
fees codified in 37 CFR parts 2 and 7.
Fees are increased for all application
filing types (i.e., paper applications,
applications filed via the Trademark
Electronic Application System (TEAS),
and requests for extension of protection
under section 66(a) of the Trademark
Act, 15 U.S.C. 1141f). The per-class fee
increases range from $25 for a TEAS
Plus application to $150 for a paper
application. In addition, fees for filing
affidavits or declarations of use or
excusable non-use under section 8 or
section 71 of the Act (section 8 or
section 71 affidavits), 15 U.S.C. 1058,
1141k, are increasing by $100 per class.
As described in further detail below,
these increases address policy
considerations related to ensuring a
more accurate register as well as
reflecting increased processing costs to
the Office in handling these filings.
This rule creates two levels of fees for
petitions. There is one fee for petitions
to the Director under §§ 2.146 and
2.147, and a lower fee for a petition to
revive an abandoned application under
§ 2.66. Currently, the fees for these
petitions are $200 if filed on paper and
$100 if filed through TEAS. This rule
sets the fee for petitions under §§ 2.146
and 2.147 at $350 if filed on paper and
$250 if filed through TEAS. The fees for
a petition to revive under § 2.66 are set
at $250 if filed on paper and $150 if
filed through TEAS. These fees take into
account the different processing costs of
these filings.
The USPTO is also setting a new $50
fee for filing a letter of protest, along
with new regulations that codify letterof-protest procedures. The new fee and
procedures are designed to help offset
processing costs and deter the filing of
unsupported or irrelevant letters of
protest, while not discouraging the
filing of relevant, well-supported letters
of protest. The new regulatory section is
based on existing, longstanding
procedures for letters of protest, which
are currently set forth in the Trademark
Manual of Examining Procedure
(TMEP), as well as the procedures set
out in the patents rules in 37 CFR 1.290
and 1.291 and the Manual of Patent
Examining Procedure (MPEP) governing
third-party submissions concerning
pending applications, which serve a
function similar to letters of protest.
As discussed further below, some of
the fee adjustments made in this rule are
meant to adjust applicant behaviors that

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put an undue burden on the trademark
system and that can adversely affect the
quality and integrity of the trademark
register. Some of these behavior
adjustments are accomplished with new
fees (e.g., post audit deletion of goods
and services) or with targeted increases
(e.g. TEAS Plus vs. TEAS Standard to
promote more efficient, higher quality,
and most cost effective filings,
especially for small businesses, or
increases for paper filing fees to
encourage electronic filing). As a further
example, the rule also sets a new fee
structure to encourage registrants to
perform due diligence before filing a
section 8 or section 71 affidavit to
maintain a registration, so as to
determine the goods or services for
which the registered mark is no longer
in use and to delete those goods,
services, and/or classes from the
registration. The rule sets two fee levels
for amendments to registrations to
delete goods, services, and/or classes
that depend on when the amendment is
submitted. The first is a $0 fee if the
only amendment made in a request
under section 7 of the Act (section 7
request), 15 U.S.C. 1057(e), that is filed
prior to submission of a section 8 or
section 71 affidavit, is the deletion of
goods, services, and/or classes. The
current practice that results in no
amendment fee for section 8 or section
71 affidavits that specify fewer than all
of the goods or services listed in the
registration when the affidavit is filed,
which results in the deletion of goods,
services, and/or classes not included in
the affidavit from the registration, is
unchanged. However a fee will be
assessed if goods, services, and/or
classes are deleted in either a section 7
request, a response to an Office action,
or a voluntary amendment filed after
submission, but prior to acceptance, of
a section 8 or section 71 affidavit. This
is a per-class fee of $250 for submissions
filed through TEAS and $350 for
submissions permitted to be filed on
paper. To implement the new fee
requirement, corresponding new
regulations are enacted at §§ 2.161(c)
and 7.37(c). In addition, the rule revises
the section titles and restructures
§§ 2.161 and 7.37 to set out the
requirements for section 8 and section
71 affidavits more clearly. Except for the
new provision regarding the fee
required for deletions made after
submission and prior to acceptance of
the affidavit, the substantive text of
§§ 2.161 and 7.37 is not otherwise
revised.
Finally, as discussed below, 16 fees
related to TTAB filings (8 for electronic
filings and 8 for paper filings) are

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established or adjusted in this rule. Ten
existing fees (5 electronic/5 paper) are
increased, specifically, those for
initiating an ex parte appeal from an
examining attorney’s refusal to register
a mark, for initiating an opposition
proceeding, for initiating a cancellation
proceeding, and for filing each of two
different types of extensions of time to
oppose. Six new filing fees (3
electronic/3 paper) are established,
which are explained below. The new
and adjusted fees are generally designed
to recover more of the costs of TTAB
procedures, reduce the extent to which
they are subsidized by other trademark
fee collections, and advance policy
objectives. The USPTO also revises
§ 2.114(a) to provide that a partial
refund of the filing fee for a petition to
cancel may be made in cases involving
only a nonuse or abandonment claim,
when default judgment is entered in the
case, where there was no appearance by
a defendant, and where no filings were
made other than the petition to cancel.
III. Rulemaking Goals and Strategies:
Consistent with federal fee setting
standards, the Office conducted a
biennial review of fees, costs, and
revenues that began in FY 2019 and
found that fee adjustments were
necessary to provide the resources
needed to improve trademark operations
and to implement the USPTO 2018–
2022 Strategic Plan (Strategic Plan). As
a result, the fee adjustments in this rule
directly align with the Office’s strategic
goals and key objectives as outlined in
this section. Consistent with the
USPTO’s strategic goals and obligations
under the AIA, the overall objective of
this rule is to ensure the fee schedule
generates sufficient revenue to recover
the prospective aggregate costs of
trademark and TTAB strategic
improvements and operations,
including the associated administrative
costs. Fees must be set at levels
projected to cover the cost of future
budgetary requirements and maintain an
operating reserve at a sufficient level.
Trademark applications in FY 2019
represented filings in a record number
of over 673,000 classes of goods/
services. During ordinary economic
times, application filings generally have
increased by an average historical rate of
between 7% and 8% per year. To ensure
its ability to keep pace with demand,
the USPTO is in the midst of a multiyear IT systems and infrastructure
upgrade, which is critical to the future
of the U.S. trademark registration
system and represents a significant cost
to the Office.
Trademark filings—and, therefore,
total revenue—are sensitive to general
economic conditions. In the last two

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recessions, new application filings
declined (2001, by ¥21.0%; 2002, by
¥12.7%; and 2009, by ¥12.3%). So far,
in the current uncertain economic
environment, trademark application
filings are showing some resilience;
however, with a protracted pandemic,
the risk of a major filing decline remains
high. The USPTO anticipates a return to
historical growth rates as trademark
applicants return to expected activities.
However, current fees have not kept up
with increases in salary, IT and other
costs, and a return to traditional growth
rates means a return to additional costs
for new staff and supporting resources
including information technology. In
general, the proposed increases are
commensurate with the size of the cost
recovery shortfalls in trademark
examination and TTAB proceedings. As
discussed above, with the larger net
costs from applications, revenue
surpluses derived from other services,
such as ITU and maintenance payments,
are being reduced. The increases in this
rule are designed to address those
shortfalls, which as noted above are
projected to increase in the future
without the fee adjustments being made
in this rule.
The USPTO, as a fully fee-funded
agency, retains an operating reserve to
ensure sufficient financial resources are
available to support and promote public
confidence in the U.S. intellectual
property (IP) system. The operating
reserve enables the USPTO to maintain
operations by absorbing and responding
to immediate and temporary changes in
its economic and operating
environments or circumstances, such as
unexpected economic downturns,
reducing the risk for short-term
financial actions and providing the
security for long-term strategic
investments, such as IT development
projects that are crucial to operations
and customer support. An adequate
operating reserve also allows the
USPTO to continue serving its users in
the event of a short-term lapse in
congressional appropriations or other
disruptions to the agency’s cash flow.
The fee schedule in effect prior to this
rulemaking was insufficient to satisfy
future budgetary requirements to: (1)
Meet the expenses that will result from
projected filings; (2) recover the costs
necessary to support trademark and
TTAB operations and administrative
services; (3) make necessary
investments in IT systems, IP policy,
and USPTO programs related to
trademark and TTAB operations; and (4)
achieve optimal operating reserve levels
to ensure financial sustainability.
Budgetary requirements increased to
address unplanned pay raises,

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additional review of filings for potential
fraud, post-registration audits, agency
administrative operations, and
continued investments in IT that
required additional funding beginning
in FY 2020. IT investments include
modernization of IT systems to create a
fully electronic workflow and state-ofthe-art technological resources for
external and internal users. New

systems will also be deployed that
enhance access for external trademark
customers and stakeholders.
Operational gains from these IT
investments will allow for a broader
public base to more efficiently and
effectively apply for, register, and
maintain trademark registrations and to
continue to invest in and reap the
benefits of strong brands, which will

ultimately benefit American consumers
and sustain economic activities.
Without the fee adjustments enacted
in this rule, based on the assumptions
found in the FY 2021 Congressional
Justification, budgetary requirements
would exceed revenues and available
operating reserve balances beginning in
FY 2022 through FY 2025 (see Table 1).

TABLE 1—TRADEMARK FINANCIAL OUTLOOK WITHOUT FINAL RULE FEES—FY 2021–FY 2025
Dollars in millions
FY 2021
Projected Fee Collections ....................................................
Other Income .......................................................................
Total Projected Fee Collections and Other Income ............
Budgetary Requirements .....................................................
Funding to (+) and from (¥) Operating Reserve ................
Operating Reserve Balance .................................................
Over/(Under) Minimum Level ...............................................
Over/(Under) Optimal Level .................................................

Table 2 below shows the available
revenue and operating reserve balances
by fiscal year, after including the new
fee rates in the projected fee collections.
The numbers in the table below were
developed in late calendar year 2019,
prior to the COVID–19 pandemic, in
support of the FY 2021 Congressional

FY 2022

$367
6
373
419
(46)
26
(49)
(184)

FY 2023

$390
6
396
460
(64)
(38)
(113)
(268)

$412
6
418
462
(44)
(81)
(156)
(312)

Justification, and have been updated to
remove the previously proposed fee for
requests for reconsideration filed more
than three months from the date of
issuance of a final Office action. Under
current circumstances, it is difficult to
predict what the actual numbers will be.
However, since the USPTO was

FY 2024
$430
6
436
478
(42)
(123)
(198)
(362)

FY 2025
$447
6
453
497
(44)
(167)
(242)
(415)

projecting insufficient funding even
during an economic expansion (see
Table 1), and the trademark financial
outlook has worsened since the onset of
the pandemic, the fee increase is a
necessary step to put the Office on a
sustainable financial path.

TABLE 2—TRADEMARK FINANCIAL OUTLOOK INCLUDING FINAL RULE FEES—FY 2021–FY 2025
Dollars in millions
FY 2021
Projected Fee Collections ....................................................
Other Income .......................................................................
Total Projected Fee Collections and Other Income ............
Budgetary Requirements .....................................................
Funding to (+) and from (¥) Operating Reserve ................
Operating Reserve Balance .................................................
Over/(Under) Minimum Level ...............................................
Over/(Under) Optimal Level .................................................

Additional information on estimated
costs can be found in the USPTO FY
2021 Congressional Justification at
https://www.uspto.gov/about-us/
performance-and-planning/budget-andfinancial-information, which includes
two revenue estimates, one based on the
current fee schedule and another based
on the fee schedule proposed in the
NPRM (see Appendix IV: USPTO Fees—
Change from FY 2020 PB to FY 2021
PB).
Another fee setting goal of this
rulemaking is to set individual fees to
further key IP protection policy
objectives while taking into account the
cost of a particular service. The USPTO
seeks to enhance trademark protection
for IP rights holders by offering

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FY 2022

$443
6
449
419
30
101
26
(108)

$471
6
477
460
17
118
43
(112)

application processing options and
promoting IP protection strategies.
A. Aligning Fees With Costs: The first
fee setting policy consideration is to set
and adjust trademark fees to more
closely align them with the costs of
providing the relevant services. The
overall goal is to achieve total cost
recovery from fee collections for
trademark and TTAB operations,
including associated administrative
services. In determining which fees to
set or adjust, this rule targets changes to
the category of fees in which the gap
between the cost of the service and the
current fee rate is the greatest, and
where narrowing that gap serves policy
objectives. As noted above, application
filing fees, petition fees, and TTAB fees

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FY 2023
$497
6
503
462
41
159
84
(72)

FY 2024
$518
6
524
478
46
206
131
(33)

FY 2025
$538
6
544
497
47
253
178
4

do not fully cover the costs of
processing and examination for those
services. Instead, these costs are
recovered or subsidized from fees paid
for intent-to-use and post-registration
maintenance filings that return more
than the costs of processing such filings.
As noted above, the USPTO anticipates,
based on current trends, that this
shortfall in cost recovery for these frontend services will continue absent the fee
adjustments made in this rule. For
example, using FY 2019 earned revenue
compared to costs or expenses,
application filing fees recovered 65% of
expenses, petition (trademark
processing) fees recovered 50% of
expenses, and TTAB fees recovered just
31% of expenses (see Table 3).

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73201

TABLE 3—EARNED REVENUE VS. EXPENSE BY TRADEMARK PRODUCT
[Dollars in millions]
FY 2019
earned revenue

Trademark products

FY 2019
expense

FY 2019
variance

Earned revenue
vs. expense or
cost recovery
(percent)

Application Filings ....................................................................................
Intent to Use/Use Fees ............................................................................
Trademark Processing Fees ...................................................................
Maintaining Exclusive Rights ...................................................................
Madrid Protocol ........................................................................................
Other Trademark Fees ............................................................................
Trademark Trial and Appeal Board .........................................................

$190
50
3
80
4
11
8

$292
17
5
14
1
9
28

$(102)
33
(2)
66
3
2
(20)

65
291
50
571
427
119
31

Total ..................................................................................................

346

366

(20)

95

The fee schedule enacted in this rule
will increase the percentage of fee
revenues collected over a five year

period for application filings by 21%,
for petition filings by 73%, and for
TTAB filings by 58% overall, thereby

increasing the cost recovery for these
services (see Table 4).

TABLE 4—INCREASE IN CUMULATIVE REVENUE OVER FIVE YEARS, BY PRODUCT
[Dollars in millions]
Projected cumulative revenue,
FY 2021–FY 2025
Trademark products

Current
fee rates
(baseline)

% Increase
Final fee
rates

Application Filings ........................................................................................................................
Maintaining Exclusive Rights .......................................................................................................
Intent to Use/Use .........................................................................................................................
Madrid ..........................................................................................................................................
TTAB ............................................................................................................................................
Petition .........................................................................................................................................
Other Processing Fees ................................................................................................................

$1,079
518
293
29
53
18
58

$1,301
659
293
42
83
30
58

21
27
0
45
58
73
0

Total ......................................................................................................................................

2,047

2,467

20

Estimated revenues account for
adjustments made to fee rates after
considering public comments received
in regard to this rulemaking.
B. Protecting the Integrity of the
Trademark Register: The second fee
setting policy consideration is to set or
adjust fees to provide resources
necessary to improve the accuracy of the
trademark register. The trademark
register is a reflection of marks that are
actually in use in commerce in the
United States for the goods and/or
services identified in the registrations
and its accuracy serves a critical
purpose for the public and for all
registrants. An accurate register allows
the public to rely on the register to
determine potential trademark rights. By
registering trademarks, the USPTO has a
significant role in protecting consumers,
as well as providing important benefits
to American businesses, by allowing
them to strengthen and safeguard their
brands and related investments. The
public relies on the register to determine
whether a chosen mark is available for

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use or registration. When a person’s
search of the register discloses a
potentially confusingly similar mark,
that person may incur a variety of
resulting costs and burdens, such as
those associated with investigating the
actual use of the disclosed mark to
assess any conflict, initiating
proceedings to cancel the registration or
oppose the application of the disclosed
mark, engaging in civil litigation to
resolve a dispute over the mark, or
changing business plans to avoid the
use of that person’s chosen mark. In
addition, such persons may incur costs
and burdens unnecessarily if a
registered mark is not actually in use in
commerce in the United States or is not
in use in commerce in connection with
all the goods and/or services identified
in the registration. An accurate and
reliable trademark register helps avoid
such needless public costs and burdens.
This rule sets and adjusts fees to
encourage actions by trademark filers
that help facilitate more efficient
processing and the prompt conclusion

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of application prosecution by assessing
fees for second and subsequent
extension requests to file appeal briefs.
In addition, filings that may result in a
less accurate register, including postregistration filings to maintain
registrations that may include goods or
services for which the mark is no longer
in use, are among those filings targeted
under this objective. The new fee
structure for requests to delete goods,
services, and/or classes from a
registration will protect and improve the
integrity of the register and the
efficiency of the process by
incentivizing both more timely filings
and proactive action by registrants to
ensure the accuracy of their
registrations. The increased efficiencies
realized through this rule will benefit all
applicants and registrants by allowing
registrations to be granted sooner and
more efficiently by removing unused
marks and unsupported goods and
services from the register. In addition,
revenue generated by this rule allows
for continuing development of methods

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for detecting and addressing filing
practices that threaten the integrity of
the register.
C. Improving the Efficiency of USPTO
Processes: The third fee setting policy
consideration pertains to improving the
efficiency of the trademark and TTAB
processes. To that end, this rule targets
changes to fees that will
administratively improve application
and appeal processing by incentivizing
more complete and timely filings and
prosecution. For example, TEAS Plus,
the lowest-cost TEAS application filing
option, has more stringent initial
application requirements and thus tends
to result in a more complete application,
which expedites processing, shortens
pendency, minimizes manual
processing and the potential for dataentry errors, and is thus more efficient
for both the filer and the USPTO. While
the per-class fee for TEAS Plus is
increasing by $25 (to $250) under this
rule, the per-class fee for TEAS
Standard, which has less stringent
initial application requirements, is
increasing by $75 (to $350), resulting in
a difference of $100 in the per-class fees
of the respective filing options (double
the current difference of $50), providing
a greater financial incentive to choose
the more efficient TEAS Plus filing
option.

D. Ensuring Financial Sustainability
to Facilitate Effective Trademark
Operations: The fourth fee setting policy
consideration pertains to ensuring
sufficient revenue to recover the
aggregate costs of Trademark and TTAB
operations in future years. Additional
resources are necessary to fund the
multi-year project to upgrade IT systems
and infrastructure and other business
improvements, while also maintaining a
sufficient operating reserve balance to
ensure sustainable funding that will
mitigate the risk of unplanned financial
disruptions that could threaten
operations and planned investments.
Operating reserves are intended to
mitigate operational risk caused by a
lack of financial resources. The USPTO
defines an optimal balance and a
minimum acceptable balance for the
trademark operating reserve. The
optimal balance sets the goal for
building and maintaining the operating
reserve—it defines the desired level of
operating reserves the USPTO wishes to
maintain. The USPTO analyzes risks
related to spending and fee collections,
considering the likelihood and
consequence of each and its impact to
financial stability, in determining the
optimal reserve level. The USPTO has
determined six months of operating or
budgetary requirements to be the
optimal trademark reserve.

This rule will provide a stable
financial foundation to fulfill the
USPTO mission and maintain
performance. The budgetary
requirements of the USPTO are
comprised of substantial fixed costs,
which require increased fee rates to
ensure revenue sufficient to recover
aggregate costs. Based on the
assumptions found in the FY 2021
Congressional Justification, this rule
will produce sufficient revenue to
recover the aggregate costs of Trademark
and TTAB operations, including
executing USPTO strategic goals, policy
objectives, and initiatives; creating a
better and fairer cost-recovery system
that balances subsidizing costs to
encourage broader usage of IP rightsprotection mechanisms and
participation by more trademark
owners; promoting a strong incentive for
more efficient filing behaviors; and
protecting the federal trademark register
as a reliable indicator of marks in use in
commerce.
Based on the assumptions found in
the FY 2021 Congressional Justification,
the USPTO projects that trademark fee
collections in total would increase by an
average of 20% per year, or $76 million
to $91 million per year, over the fiveyear planning period as compared to the
baseline (see Table 5).

TABLE 5—ANNUAL INCREASES IN AGGREGATE REVENUE
[Dollars in millions]
FY 2021
Aggregate Revenue—Baseline ................
Aggregate Revenue—Final Rule .............
$ Increase ................................................
% Increase ...............................................

$367
$443
$76
21%

The projections of both aggregate
revenues and costs are based on pointin-time estimates and assumptions that
are subject to change. There is
considerable uncertainty in estimating
both fee collections and budgetary
requirements in ordinary times, and
even more so now. In addition to the
COVID–19 pandemic, a number of other
risks could materialize (e.g., lower
application volumes, decreased
renewals, recompetition of major
contracts, lease renewals, changing
assumptions about presidentially
authorized or congressionally mandated
employee pay raises, etc.) that could
change the USPTO’s budgetary outlook.
These estimates are refreshed annually
in the formulation of the USPTO’s
Budget, and the USPTO continues to
gain new data as the pandemic unfolds.

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FY 2022

FY 2023

$390
$471
$81
21%

$412
$497
$85
20%

IV. Comments and Responses: In
response to the NPRM published on
June 19, 2020, the USPTO received
comments from four intellectual
property organizations and fifteen
individual commenters, representing
law firms, small business owners, and
individuals. These comments are posted
on the Regulations.gov website at
https://beta.regulations.gov/document/
PTO-T-2019-0027-0001.
The Office received comments both
generally supporting the need to
increase fees and objecting to particular
proposed fee increases. Four major user
groups representing thousands of
trademark professionals and trademark
owners, who run the gamut from large
corporations, to small businesses and
individuals submitted comments on
behalf of their members. The user
groups generally acknowledged and

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FY 2024
$430
$518
$88
20%

FY 2025
$447
$538
$91
20%

Average
$409
$493
$83
20%

supported the need to increase fees to
further USPTO’s strategic objectives and
facilitate effective operations, including
encouraging e-filing and enabling
needed improvements in technology
and technology infrastructure. However,
the user groups objected to or had
comments regarding some specific fee
increases, as discussed below. In
addition, at least one user group noted
that some business owners struggle to
pay the current fees and suggested that
the USPTO consider the state of the U.S.
economy before issuing the final rule.
Several of the other commenters
objected to any increase in fees, as they
believed such increases placed
hardships on small business owners.
Multiple commenters requested
additional information on the rationales
for the increases and that the Office take

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the current economy into consideration
before issuing a final rule.
The USPTO appreciates the
commenters’ support of the need to
increase revenue as well as their
concerns regarding the impact of the
rule on small businesses owners. As
noted above, in formulating this rule,
the USPTO considered the state of the
U.S. economy, the operational needs of
the agency, and comments submitted in
response to the NPRM. The USPTO is
also mindful of the current difficulties
many USPTO users are experiencing as
a result of the COVID–19 pandemic. The
USPTO has undertaken many efforts to
provide various types of relief,
including deadline extensions and fee
postponements. Additionally, in the FY
2021 Congressional Justification,
implementation of the fee rule was
slated for August of 2020. Considering
the impact of the pandemic, and in
response to the stakeholder feedback,
the USPTO paused development of the
fee rule over the summer of 2020 and
deferred the timing of implementation
of the fee rule from August 2020 to
January 2021. This is the first change of
trademark fee rules in almost four years.
Fees were adjusted in January 2017, and
many of those changes were to
encourage electronic filing by increasing
fees for certain paper submissions. See
81 FR 78042 and FR 81 72694. Since
that time, the USPTO has made
electronic filing mandatory except in
limited circumstances.
Further, after considering all
comments, the Office has withdrawn the
proposed fee for requests for
reconsideration filed more than three
months from the date of issuance of a
final Office action, which commenters
noted are a frequently used option for
applicants prosecuting applications.
It should also be noted that USPTO’s
fees for trademark services remain
relatively small compared to the legal
fees many applicants incur in seeking
those services. Many applicants engage
attorneys to handle their filing with the
Office, and based on data concerning
the cost of trademark representation,
including from the American
Intellectual Property Law Association’s
2019 Report of the Economic Survey,
USPTO understands that trademark fees
represent a small fraction of the legal
fees a filer would generally pay to have
an attorney represent them during the
application process. In a TTAB
proceeding, where even more time and
work is required by an attorney
representing a party before the Board,
the fees for TTAB services would
generally be an even smaller fraction of
attorney fees associated with the
representation. Understanding that legal

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fees are a significant expense, the
USPTO will continue to help to
minimize the cost of the application
process for small businesses through the
USPTO’s law school clinic program,
which enables qualified individuals and
small businesses in need of trademark
legal services to receive pro bono
assistance in filing applications and
responding to Office actions in
trademark applications.
The Office also notes that some of the
fees being increased in this rule are paid
by only a relatively small number of
applicants—such as TTAB fees and
letter of protest fees, which are not
incurred by the majority of applicants
with trademark business before the
Office—and therefore these fee increases
are unlikely to impact a large number of
applicants, including small business
owners.
Some commenters also expressed
concerns with specific individual fees.
In the interest of providing context,
when the USPTO received comments
about a specific fee, they are
summarized, and the USPTO’s
responses are provided, in the
discussion below of the individual fee
rationale.
V. Individual Fee Rationale: Based on
the assumptions found in the FY 2021
Congressional Justification, the USPTO
projects the aggregate revenue generated
from this rule will recover the
prospective aggregate costs of its
trademark and TTAB operations and
associated administrative services.
However, each individual fee is not
necessarily set at an amount equal to the
estimated cost of performing the
activities related to the fee. Instead, as
described above, some of the fees are set
to address increases in budgetary
requirements as well as balance several
key policy considerations, and
executing these policy considerations
through the trademark fee schedule is
consistent with the goals and objectives
outlined in the Strategic Plan. Once the
cost recovery and key policy
considerations are factored in, fees are
set at, above, or below individual costrecovery levels for the service provided.
Additional details on the cost
methodologies used to derive the
historical fee unit expenses can be
found in ‘‘USPTO Fee Setting—Activity
Based Information and Trademark Fee
Unit Expense Methodology’’ at http://
www.uspto.gov/about-us/performanceand-planning/fee-setting-and-adjusting.
A. Trademark application filing fees:
This rule increases all application filing
fees by varying amounts. The filing fee
for a paper trademark application is
increasing by $150, from $600 per class
to $750 per class. The TEAS Plus

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73203

application filing fee is increasing by
$25, from $225 per class to $250 per
class. The TEAS Standard application
filing fee is increasing by $75, from $275
per class to $350 per class. The fee for
filing an application under section 66(a)
of the Act is increasing by $100, from
the equivalent of $400 per class, as paid
in Swiss francs, to the equivalent of
$500 per class, as paid in Swiss francs.
Comments: One commenter expressed
support for the increase in the paper
application filing fee. Four commenters
expressed concerns about the increase
in electronic initial application fees. Of
those four comments, one generally
commented that increases will impact
small businesses, while the others
expressed concern about the amount of
the increase in the TEAS Standard
application and resulting gap in cost
between TEAS Plus and TEAS Standard
applications.
Response: The USPTO appreciates the
commenter’s support of the need to
increase the paper application fee. The
USPTO also appreciates commenters’
concerns regarding the increase in the
TEAS Standard fees and impact on
small business owners. Initial
application fees are generally kept lower
than the full processing cost in order to
enable broader participation in the
trademark registration system. The
increase in the fees will help close the
gap between the processing cost and
incoming revenue while still keeping
the fees below the full processing cost.
The USPTO also notes that filers
continue to have the option to select
TEAS Plus, which is only increasing by
$25, from $225 per class to $250 per
class, which is less than current TEAS
Standard fee rates, and encourages
filers, including individuals and small
business owners, to use this less
expensive filing option.
This rule also decreases the
processing fee for failure to meet the
filing requirements under § 2.22(a) for a
TEAS Plus application from $125 to
$100 per class. Thus, if the processing
fee is required in a TEAS Plus
application, the resulting per-class fee
will equal the per-class fee for a TEAS
Standard application. If a decrease in
the processing fee were not enacted, the
per-class fee for an application initially
filed as TEAS Plus would exceed the fee
for a TEAS Standard application,
creating a disincentive to choose TEAS
Plus, which, as noted above, tends to be
more efficient for both filers and the
USPTO.
B. Fees for Paper Trademark Filings:
This rule maintains the cost differential
for all paper filings to better align fees
with costs by setting all trademark
processing fees for paper filings $100 to

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$200 higher than the corresponding
electronic filing fees (per class, when
applicable). Overall, it is more costly for
the USPTO to process paper filings than
electronic filings, and that cost is not
recovered by the current fees for paper
filings. Raising the fees for paper filings
will help offset the higher processing
costs and move the USPTO closer to
total cost recovery.
A final rule published on July 31,
2019 (84 FR 37081), which became
effective on February 15, 2020 (84 FR
69330), requires applicants and
registrants to file electronically through
TEAS all trademark applications based
on section 1 and/or section 44 of the
Act, 15 U.S.C. 1051, 1126, and all
submissions filed with the USPTO
concerning applications or registrations,
with limited exceptions. This followed
a final rule published on October 7,
2016 (81 FR 69950), which became
effective on January 14, 2017, requiring
all parties in TTAB proceedings to file
electronically through the Electronic
System for Trademark Trials and
Appeals (ESTTA). At present, the vast
majority of filings are submitted
electronically. For example, in FY 2019,
less than 0.02% of initial applications
were filed on paper. Thus, an increase
in paper filing fees will have no impact
on the vast majority of applicants,
registrants, and parties to Board
proceedings, who already meet the
requirement to file documents
electronically.
C. Other Trademark Processing Fees:
This rule also increases certain other
trademark processing fees to further key
policy goals. The rule sets out increases
to the fees for petitions to the Director
as well as section 8 and section 71
affidavits. In addition, the rule sets new
fees and procedural regulations for
filing a letter of protest, and for deleting
goods, services, and/or classes from a
registration after submission and prior
to acceptance of a section 8 or section
71 affidavit. Finally, the USPTO
decided not to implement the proposed
new fee for a request for reconsideration
filed more than three months, but
within six months, after the issue date
of a final action or with a petition to
revive an abandoned application.
(1) Petitions to the Director in
Trademark Matters: This rule separates
petitions to the Director into two types.
Each type has a new and distinct fee
amount with different levels of
increases from the current single fee.
The rule increases the fee for filing a
petition to the Director for petitions
filed under §§ 2.146 or 2.147 by one
amount and establishes a separate fee
code for petitions to revive filed under
§ 2.66 that increases the fee by less than

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the fee for petitions filed under §§ 2.146
or 2.147. The fees enacted herein are
intended to facilitate effective trademark
operations. The fee for electronically
filing a petition to the Director under
§§ 2.146 or 2.147 is increasing from the
current fee of $100 to $250, and the fee
for filing on paper is increasing from
$200 to $350. The fee for electronically
filing a petition to revive an abandoned
application under § 2.66 is increasing
from the current fee of $100 to $150,
and the fee for filing on paper is
increasing from $200 to $250.
Generally, petitions under §§ 2.146 or
2.147 extend the trademark registration
and post-registration processes by
introducing additional processing and
examination into the timeline, which
may lead to applications and
registration maintenance documents
remaining in a pending status for longer
periods of time, potentially blocking
others. They can also be used to delay
processing of TTAB matters. By
increasing fees for these filings, the
USPTO discourages misuse of the
process through unnecessary filings that
delay prosecution of an application or
registration maintenance document.
Comments: One commenter indicated
that they did not oppose the increase to
the fee for petitions to the Director
under § 2.66 to revive an abandoned
application and also generally
supported or are neutral regarding the
increase in the fee for petitions to the
Director under §§ 2.146 and 2.147.
Another commenter noted that the
amount of the increase for petitions
under §§ 2.146 and 2.147, from $100 to
$250, seems significantly beyond the
rate that is appropriate for periodic
increases.
Response: The USPTO appreciates the
feedback regarding the increase in fees
for a petition to the Director. The fee for
filing a petition to the Director has not
increased since the fee was established,
more than 30 years ago. Under this rule,
petitions to the Director have been
separated by type. Petitions under § 2.66
to revive an application abandoned for
failure to respond to an Office action or
notice of allowance are increased by a
smaller amount because they cost less to
process. These petitions generally
require less processing when the filer
complies with certain criteria in the
submission itself. Petitions to the
Director under §§ 2.146 and 2.147
usually include unique facts that require
a lengthier review process. The increase
in the fees for each type of petition will
help to recoup more of the costs to
process these filings. Additionally, the
increase will further policy
considerations consistent with the goals
and objectives outlined in the Strategic

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Plan because this fee should discourage
misuse of the petition process through
unnecessary filings that delay
prosecution of an application or
registration maintenance document, or
an appeal or trial proceeding before the
TTAB.
(2) Section 8 or Section 71 Affidavits:
Fees from post-registration filings have
historically been set to recover more
than the costs of processing the filings.
The fees are used to help offset the cost
of application processing and
examination as well as TTAB trial
proceedings and appeals—services for
which the fees charged generally do not
recover the full cost. In general, fewer
post-registration maintenance filings are
made by pro se and foreign registrants,
who comprise a growing share of new
applicants. Based on recent prepandemic trends, the overall percentage
of registrations being maintained is
decreasing. Therefore, the USPTO
anticipates that it will face a continuing
decrease in revenue from maintenance
filings going forward if adjustments are
not made. Increasing fees for section 8
and section 71 affidavits is necessary to
continue to enable the USPTO to
achieve aggregate cost recovery while
allowing other fees to remain below
their individual unit costs.
This rule also increases the fees for
these filings in part because of the postregistration audit program, which was
implemented as a result of the 2012 Post
Registration Proof of Use Pilot Program
(pilot program). During the pilot
program, section 8 or section 71
affidavits for 500 registrations were
reviewed as to actual use of the marks
in connection with the goods and/or
services identified in the registrations in
order to assess the accuracy and
integrity of the trademark register. The
findings of the pilot program
demonstrated a need for ongoing
measures for additional review of these
filings on a permanent basis. Since
codifying the authority to require
additional information and evidence
concerning the use of registered marks
in connection with section 8 and 71
maintenance filings in 2017 (82 FR
6259), the USPTO has conducted
additional reviews of the actual use of
the marks in 8,276 section 8 or section
71 affidavits through January 1, 2020. In
more than 50% of the registrations
undergoing the additional review, the
registrations have either been removed
from the register or had goods or
services deleted, resulting in a more
accurate trademark register. The fee
increases implemented in this rule will
also support the cost of this additional
review.

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Comments: Three commenters
expressed concerns about the increase
in fees for filing a section 8 or section
71 affidavit. One commenter stated that
the increase of $100 is excessive in light
of the $25 increase four years ago. A
second commenter indicated the
increases will decrease renewal filings,
particularly among small business
owners. The third commenter stated
that the increase in fees is significant.
This commenter also mentioned
increases to the section 15 fee. The
USPTO notes that although an increase
to the section 15 fee was initially
considered, it was not proposed in the
NPRM.
Response: The USPTO appreciates the
commenters’ concerns regarding the
increase in the fees. These postregistration filing fees have historically
been set to recover more than the costs
of processing the filings in order to
offset costs in other parts of the process.
In addition, these fees are increasing to
offset the cost of the legal examination
required to conduct the post registration
audit program, a valuable tool for
improving the accuracy and integrity of
the trademark register.
Costs for this additional examination
were discussed in the last fee
adjustment in 2017. At that time, the
Office was in the process of reviewing
the findings from the pilot program and
codifying regulations for the permanent
audit program. The results of this
ongoing audit program indicate that not
only should this program continue, but
also that the need for legal examination
of an increasing number of filings is
warranted. Based on these findings, the
increase in fees is necessary to help
offset costs for this program and allow
other fees to remain below their
individual unit costs.
(3) Letters of Protest in Trademark
Applications: This rule sets a new $50
fee for filing a letter of protest. A letter
of protest allows a third party to bring
to the attention of the USPTO evidence
bearing on the registrability of a mark in
a pending application. In this way, the
letter-of-protest procedure can
potentially improve the quality of the
examination of a given application. The
procedure is not, however, a substitute
for the statutory inter partes opposition
and cancellation procedures available to
third parties who believe they would be
damaged by the registration of the
involved mark. A letter of protest,
properly supported, should aid in
examination without causing undue
delay or compromising the integrity and
objectivity of the ex parte examination
process, which is designed to involve
communications regarding an
application only between the applicant

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and the Office. For this reason, the
protestor is not permitted to submit
legal arguments, contact the examining
attorney assigned to the subject
application, or participate in any Office
proceedings relating to the protest or the
application to which it is directed. The
limited involvement of the third party
ends with the filing of the protest. The
questions of whether evidence is
relevant to a ground for refusal
appropriate in ex parte examination,
whether a refusal should be made, or
whether a registration will issue are
matters for the Office to determine
during the ex parte examination process
that occurs between the applicant and
the Office acting on behalf of the public.
The Office incurs costs associated
with the work of reviewing and
processing each letter. The filing
volume for letters of protest has steadily
increased in recent years, with the
USPTO receiving 2,726 in FY 2017;
3,480 in FY 2018; and 4,106 in FY 2019.
Thus, letters of protest continue to
generate increasing additional expenses,
which will likely further increase in the
future.
Comments: The Office received
comments both generally supporting
and objecting to the new fee to file a
letter of protest. Commenters supporting
the fee stated that the amount is
reasonable and appropriate to recoup
costs. Two of the commenters indicated
that the fee should be kept as low as
possible, with one suggesting that the
fee should be set at $25 instead of $50,
and one suggesting that the fee should
be refunded if the letter of protest is
granted. Several other commenters
expressed concerns about the impact to
small businesses by requiring a fee to
file a letter of protest. These
commenters also noted that letters of
protest aid the Office by bringing to
light information and/or refusals that an
examining attorney may miss. These
commenters stated that the Office
should not charge a fee for a process
that allows the public to aid in the
registration process.
Response: The USPTO understands
the desire to keep the fee low so as to
not discourage the use of the letter-ofprotest process. However, given the
costs to process these filings, the
USPTO has determined that a fee is
necessary to help offset some of the
processing costs. Similar to petitions
under §§ 2.146 and 2.147, review of
letters of protest cannot be automated
because they include unique facts
requiring review by staff attorneys to
ensure guidelines are met before the
information is sent to the examining
attorney for review. In FY 2019, the
evidence in approximately 25% of pre-

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publication letters of protest and 94% of
post-publication letters of protest was
not forwarded to the examining
attorney. This suggests that a significant
portion of filings do not contain relevant
information or evidence, do not meet
the requirements for a letter of protest,
or are otherwise unnecessary. These
filings generate additional costs without
a proportionate corresponding benefit.
The fee set by this rule is below the
amount required to recoup the full
processing cost. The fee is intended to
be at a level high enough to partially
offset processing costs and deter the
filing of unsupported or irrelevant
filings, but low enough so as not to
discourage the filing of relevant, wellsupported letters of protest. This fee is
also consistent with the
recommendations contained in the
TPAC report that it fall within the $20
to $100 fee range. The USPTO does not
anticipate that the letter of protest fee
will impact a large number of parties
with business before the Office. The
letter of protest is a purely voluntary
process that most applicants and
registrants do not use. In addition, the
letter of protest process was developed
many years ago when examining
attorneys had limited resources for
gathering evidence to support refusals of
registration. The tools available to
examining attorneys today are far more
advanced, reducing the need for letters
of protest.
In connection with this fee, the
USPTO also codifies a new regulatory
section at 37 CFR 2.149, which sets out
the procedures for letters of protest. The
new regulatory section is based on the
existing longstanding procedures for
letters of protest, which are currently set
forth in the TMEP, with appropriate
modifications that more closely align
the procedures with those for similar
third-party submissions and protests in
patent applications under 37 CFR 1.290
and 1.291 and as set out in MPEP
§§ 1134 and 1901. This action is being
undertaken at this time due to the rising
volume of letters of protest in recent
years, which has resulted in the need to
codify procedures for submission of
such protests in the regulations and to
adjust those procedures to deal
efficiently with this higher volume of
filings.
Under the procedures set forth in the
regulatory text at § 2.149, a letter of
protest must be timely filed through
TEAS and must include: (1) The fee; (2)
the serial number of the pending
application that is the subject of the
protest; (3) an itemized evidence index
that includes identification of the
documents, or portions of documents,
being submitted as evidence and a

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concise factual statement of the relevant
grounds for refusal of registration
appropriate in ex parte examination that
each identified item supports; and (4) a
clear and legible copy of the supporting
evidence identified in the evidence
index. If the letter of protest is filed
before publication of the subject
application, the evidence must be
relevant to the identified ground(s) for
refusal. If filed on the date of or within
30 days after publication of the subject
application, the evidence must establish
a prima facie case for refusal on the
identified grounds, such that failure to
issue a refusal or make a requirement
would likely result in issuance of a
registration in violation of the Act or
regulations.
The letter-of-protest process is
intended to provide an opportunity for
the protestor to efficiently and
effectively provide relevant evidence in
support of the proposed legal grounds
for refusing registration of the
application identified in the
submission. It is inappropriate for the
protestor to ‘‘dump’’ evidence and leave
it to the Office to determine its possible
relevance. Therefore, an index is
required for all submissions listing the
documents submitted as evidence and
the ground(s) for refusal each item of
evidence supports. In addition, the
procedures also require that the
submission not total more than 10 items
of evidence in support of a specified
ground of refusal and not more than 75
total pages of evidence without a
detailed and sufficient explanation that
establishes the special circumstances
that necessitate providing more than 10
items of evidence per refusal ground or
more than 75 total pages of evidence.
This requirement encourages the
submission of evidence that is succinct,
not duplicative, and limited to the most
relevant evidence. It should be a rare
situation in which more than 10 items
of evidence or 75 total pages of evidence
is necessary to support the proposed
legal grounds for refusal. However,
some examples of situations that might
constitute such special circumstances
are when: (1) A subject application
includes multiple classes and the
protestor needs to provide evidence of
relatedness of the goods and/or services
for all classes in the application; (2)
evidence submitted to support a refusal
for descriptiveness consists of fewer
than 10 discrete items, but each item
comprises multiple pages, totaling more
than 75 pages; or (3) a protestor raises
more than one ground for refusal and
the evidence necessary to support all
grounds raised totals more than 10 items
or 75 pages.

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A letter of protest submitted by a third
party is not made part of the application
record to preserve the ex parte nature of
examination. If the USPTO determines
that the submission complies with the
proposed regulations, only the specified
grounds for refusal and the provided
evidence relevant to the grounds for
refusal would be included in the
application record for consideration by
the examining attorney. A third party
filing a letter of protest will not receive
any communication from the USPTO
relating to the submission other than
acknowledgement that it has been
received by the Office and notification
of whether the submission is found to
be compliant or non-compliant. Also,
the Office will not accept amendments
to a non-compliant submission that was
previously filed or requests to
reconsider a compliance determination.
Rather, the third party may submit a
new letter of protest that is compliant if
the time period for submitting a letter of
protest has not closed. A protestor does
not, by the mere filing of a protest,
obtain a ‘‘right’’ to argue the protest
before the Office. As noted above, the
questions of whether evidence is
relevant to a refusal ground appropriate
in ex parte examination, whether a
refusal will be made, or whether a
registration will issue are matters for the
Office to determine as part of the ex
parte examination process that occurs
between the applicant and the Office
acting on behalf of the public.
Therefore, the procedures also provide
that: (1) The Office’s determination
whether to include submitted evidence
in the record of an application would be
final and non-petitionable, (2) the
limited involvement of the third party
ends with the filing of the letter of
protest, and (3) the third party may not
directly contact the examining attorney
assigned to the application.
(4) Requests for Reconsideration in
Trademark Applications: The USPTO
has decided not to implement the
proposed new fee for a request for
reconsideration filed more than three
months, but within six months, after the
issue date of a final action or with a
petition to revive an abandoned
application. The proposed fee was $400
for a TEAS submission and $500 for a
paper submission. No fee was proposed
to be incurred for requests filed within
three months of the issue date of a final
action.
Comments: Seven commenters
objected to and expressed a variety of
concerns regarding implementation of a
fee for requests for reconsideration of a
trademark application. One commenter
noted that the proposed fee would
impose a significant financial burden

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late in the process. Another commenter
noted that the proposed fee would be
higher than the initial application fee.
Response: After further review, the
USPTO has determined that the
proposed fee might not provide
significant enhancement to the
timeliness or quality of the examination
process and would impose an additional
financial burden to administer. Given
these considerations and the public
concerns about such a fee, including the
impact of potential fee increases on
small businesses and individuals, the
USPTO withdraws this proposed fee.
(5) Deletion of Goods, Services, and/
or Classes from Registrations: Currently,
amendments to registrations may be
made by filing a section 7 request for
amendment or correction of a
registration for $100, if submitted
through TEAS, or $200, if filed on
paper. This rule sets a $0 fee for a
section 7 request that is filed through
TEAS prior to the submission of a
section 8 or section 71 affidavit and that
consists only of a request to delete
specified goods, services, and/or classes.
As noted above, the current practice that
results in no additional amendment fee
for section 8 or section 71 affidavits that
specify fewer than all of the goods or
services listed in the registration when
the affidavit is filed, which results in
the deletion of goods, services, and/or
classes not included in the affidavit
from the registration, is unchanged.
However, a fee will be assessed if goods,
services, and/or classes are deleted in a
section 7 request, a response to an
Office action, or a voluntary amendment
filed after submission, but prior to the
acceptance, of a section 8 or section 71
affidavit. This rule sets a new fee of
$250 per class, if filed through TEAS, or
$350 per class, if a paper filing is
permitted, for deleting goods, services,
and/or classes from the registration
under such circumstances.
The $0 fee option is available to, and
the $250 (or $350) per-class fee will be
assessed against, all registrants. Thus,
the fees are not related to the postregistration audit program or a TTAB
finding. The fees are intended to
improve the accuracy and integrity of
the register by encouraging all
registrants to perform due diligence
before filing a section 8 or section 71
affidavit to maintain a registration, so as
to determine the goods, services, and/or
classes for which the registered mark is
no longer in use and to delete them from
the registration.
Comments: One commenter indicated
support for a $0 fee for a section 7
request to delete goods or services prior
to filing a section 8 or 71 affidavit. Two
commenters expressed concern for

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offsetting the cost to the USPTO to mail
an updated paper registration certificate
to filers who take advantage of the $0
fee.
Response: The comments have been
considered; however, the USPTO
anticipates that other fees will help
offset these costs. The decision to
implement this fee as proposed
prioritizes the key policy objective of
incentivizing improvement of the
accuracy and integrity of the register.
Comments: Five commenters
expressed concerns regarding the new
fee to delete goods, services, and/or
classes from a registration after a section
8 or 71 affidavit has been submitted.
One commenter indicated there should
be no fee for changes made online.
Three commenters indicated the amount
of the fee is too high, with two
commenters suggesting the fee should
be $100 per class. Finally, one
commenter expressed concerns
regarding the post-registration audit
program and use of the fee to
incentivize an increase in audited files.
Response: Applicants and registrants
are required to submit all trademark
filings electronically (i.e., online). 37
CFR 2.23. Since the fee is intended to
incentivize all registrants to perform the
due diligence necessary to ensure that
the mark is in use on all goods and/or
services recited in the registration prior
to the submission of a section 8 or 71
affidavit, not implementing the fee for
an electronic filing would undermine
the USPTO’s express purpose in
proposing the fee. Further, the fee is not
charged if the registrant performs its due
diligence and deletes any goods,
services, and/or classes for which the
mark is not in use within the section 8
or 71 affidavit at the time of filing.
As noted above, the fee structure for
requests to delete goods, services, and/
or classes from a registration will
protect and improve the integrity of the
register and the efficiency of the process
by incentivizing both more timely
filings and proactive action by
registrants to ensure the accuracy of
their registrations. Undermining the
quality of the register will generate
potentially exorbitant undue costs and
hardship on registrants, applicants, and
the agency. The new fee needs to be
high enough to reflect the significance
of incomplete due diligence. At the
same time, the fee should not be so low
as to have limited deterrence. The
USPTO believes that $250 is the
appropriate fee to incentivize the
desired practices. Further, the increased
efficiencies realized through this rule
will benefit all applicants and
registrants by allowing registrations to
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by removing unused marks and
unsupported goods and services from
the register. In addition, revenue
generated by this rule allows for
continuing development of methods for
detecting and addressing filing practices
that threaten the integrity of the register.
The USPTO assures the public that
any decision to increase the number of
registrations audited after submission of
a post-registration maintenance
document would be made to promote
the accuracy and integrity of the register
and not because of the possibility that
it might increase revenue. As noted
above, the no-fee option is available to,
and the $250 (or $350) per-class fee will
be assessed against, all registrants. The
fee is applied to all registrations in
which goods or services are deleted after
submission, but prior to acceptance, of
a section 8 or 71 affidavit, not only to
deletions in registrations being audited.
When filing a section 8 or 71 affidavit,
all registrants are required to specify the
goods and/or services for which the
mark is in use in commerce. These fees
will serve to improve the integrity and
quality of the register by incentivizing
all registrants to perform the due
diligence necessary before submission
of a section 8 or 71 affidavit to maintain
a registration. Thus, registrants who
ensure that their marks are in use in
commerce in connection with the goods
and/or services listed in the registration
before the submission of a section 8 or
71 affidavit, and who delete those
goods, services, and/or classes for which
the mark is not in use when the affidavit
is submitted, are not subject to this fee.
However, registrants who later
determine, either as part of an audit or
not, that some of the goods, services,
and/or classes included in the affidavit
must be deleted are subject to the fee.
D. TTAB Fees: This rule sets or
adjusts 16 TTAB-related fees (8 for
electronic filings and 8 for paper
filings). Ten existing fees (5 electronic/
5 paper) are increased, specifically,
those for initiating an ex parte appeal
from an examining attorney’s refusal to
register a mark, for initiating an
opposition proceeding, for initiating a
cancellation proceeding, and for filing
each of two different types of extensions
of time to oppose. Six new filing fees (3
electronic/3 paper) are established, and
are explained below. The rule also
codifies that the TTAB has discretion to
grant a refund of a portion of the filing
fee for a petition to cancel. While the
percentage increase for a number of
TTAB fees is larger than the application
filing fees discussed above, the USPTO
notes that many of the TTAB fees
remain below cost recovery, considering
the significant costs the Board incurs in

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conducting proceedings. In addition,
TTABs fees are a small percentage of the
total litigation costs incurred by a party
before the Board, considering the
attorney fees and other expenses of
litigation.
(1) Existing Fees for Trial Cases: To
better align the costs of providing TTAB
services with the fees charged for them,
this rule increases the fee for petitions
for cancellation and notices of
opposition by $200 per class. The rule
also amends § 2.114(a) to allow the
USPTO discretion to refund a portion of
the petition fee in cases of default
judgment where there is no appearance
by a defendant and no filings are made
other than the petition to cancel,
reflecting reduced work needed on the
part of the TTAB. The resulting lower
net fee for a petition to cancel that meets
these characteristics also furthers the
policy goal of not discouraging the filing
of petitions to cancel by petitioners with
knowledge that a registered mark is no
longer in use, or was never put to use,
and therefore should be removed from
the register. The refund will be in the
amount of $200 per class, as explained
below.
Comments: Four IP stakeholder
organizations provided comments on
the proposed $200 per class increases in
the fees for trial cases (Notices of
Opposition and Petitions for
Cancellation). Three of the four noted
the increases of four years ago, and
stated that they consider the proposed
increases ‘‘steep’’ or ‘‘excessive.’’
Response: The percentage of TTAB
costs associated with processing of trial
cases varies a great deal, as compared to
the uniform per class filing fee. Clearly,
in an opposition or cancellation case in
which no appearance by a defendant is
made, no filing other than the plaintiff’s
initial complaint is made, and the case
is decided by way of default judgment,
a higher percentage of TTAB operational
costs is covered than in a case involving
significant motion practice and a full
trial. The original set of fee proposals
discussed in the TPAC fee setting
hearing with the public and
stakeholders included a discussion of
shifting some of the costs of TTAB trials
to heavier users of trial case services, for
example, by requiring a fee for the filing
of a motion for summary judgment.
However, initial stakeholder input
during the fee setting hearing clearly
indicated a preference for more uniform
filing fees and fewer user fees for
particular filings.
The costs associated with processing
trial cases are more substantial than
with appeal cases because of the larger
number of trial cases and the procedural
complexities. For example, the Board’s

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staff of 18 interlocutory attorneys exists
primarily to handle contested motions
in trial cases. Since parties in trial cases
pay no fees associated with the myriad
motions, voluminous evidentiary
submissions, and many briefs that can
be filed, trial case filing fees need to be
set for all commenced trial cases at a
level that furthers cost recovery for all
such cases. In addition, as noted above,
USPTO initial fees for filing trial cases
at the TTAB, compared to other costs
associated with financing litigation,
such as attorney fees, remain a small
part of overall litigation costs.
As noted in the NPRM, TTAB fee
revenue presently covers only 31% of
TTAB operating costs. Applicants and
registrants making filings in the
trademark operation, the vast majority
of whom do not use TTAB services,
subsidize TTAB costs. The TTAB can
recover a more substantial percentage of
its operating costs, thereby reducing the
subsidization of TTAB operations, while
still keeping TTAB filing fees low as a
portion of the overall cost of litigation
by attaching fees to the TTAB filings
that are significant enough in number to
bring in appreciable revenue. The most
effective means for raising revenue that
will allow the Board to recover more of
its operating costs lies in filing fees for
trial cases, and in particular,
oppositions
(2) Partial Refunds of Qualifying
Cancellation Fees:
Comments: Three IP stakeholder
organizations addressed the proposal to
grant the TTAB discretion to provide
partial refunds in cancellation cases
asserting abandonment or nonuse of a
registered mark, where there is no
appearance by a defendant, no filings
are made other than the petition to
cancel, and where a default judgment is
entered. Commenters sought
clarification regarding how the Board
would exercise such discretion, whether
the refund would be processed as a
matter of course by the Board, or
whether a refund request must be filed
and whether the refund of $200 is per
class or per proceeding. One of these
commenters also sought clarification as
to whether the petitioner would need to
have a deposit account for the refund to
issue.
Response: First, the Office is granted
discretion under revised § 2.114(a)
precisely because it must have the
discretion to refund any portion of a fee
otherwise required. The TTAB will
process refunds as a matter of course
during the process of termination of a
cancellation case, so long as the stated
requirements are met. Paralegals will
have no need to exercise individual

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discretion to determine whether to
provide a refund or not.
Second, refunds will be handled by
TTAB paralegals, during the process of
terminating cancellation proceedings.
The petitioner will not have to request
the refund. The refund will be
processed in the same way that refunds
now are processed for cases that should
not have been instituted and are
dismissed as a nullity. Therefore, a filer
who did not use a deposit account to
pay the filing fee would not need to
establish an account just for the purpose
of receiving a refund.
Third, as explained in the NPRM,
under this rule a petitioner filing only
an abandonment or nonuse claim,
where no other filings are made, and in
which a default judgment is entered,
would receive a $200 per class refund
of the filing fee. That is, the net filing
fee would be the same as it was prior
to this rule. Notwithstanding the
pressing need to cover more of the
TTAB’s operating costs, the refund of a
portion of the fee for a petition to cancel
provided for by this rule, under defined
circumstances, means that many filers
of petitions for cancellation will see no
increase in the filing fee for such cases.
Comments: One commenter sought
clarification as to what would happen if
the Board granted a motion to reopen a
case in which the Board had entered
default judgment.
Response: To ensure that cancellation
petitioners who do not obtain default
judgments are treated equally, if a
motion to reopen was granted in a
cancellation case that was originally
decided by default, the petitioner would
be assessed the amount of the refund
processed at the time of default.
Comments: One commenter suggested
that the refund conditions be expanded
to allow for filing of some documents
prior to entry of a default judgment (e.g.,
‘‘no substantive filings’’ were made or
only ‘‘simple, procedural’’ filings were
made).
Response: The Office appreciates the
comment that some cancellation cases
asserting only abandonment or nonuse
claims may have few filings and no
‘‘substantive’’ filings prior to entry of
default judgment. However, the refund
procedure is established with clear
guidelines for determining when a
refund will be provided to avoid caseby-case discretionary judgments on
whether a filing was substantive or a
‘‘simple, procedural filing.’’
The Office will not expand the refund
process to cancellation cases asserting
abandonment that involve filing of more
than just the initial complaint prior to
entry of judgment. Extending the refund
to cancellation cases asserting

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abandonment and that involve filings
other than the initial complaint would
require time-consuming case-by-case
judgments regarding whether the filings
were substantive or not or were simple
and procedural. Moreover, cases that
did not involve substantive filings might
still involve many procedural filings
that could cause the case to remain
pending for a long period of time, and
the refund proposal is designed to
benefit cases that are terminated
rapidly. In addition, decisions by TTAB
personnel regarding whether filings
were substantive or simple could then
be subject to review on petition and
would result in additional delays prior
to termination.
Comments: Commenters also
proposed that a refund should be
available in opposition cases and for all
cases of default judgment, regardless of
the grounds asserted by the plaintiff. Of
the two stakeholder organizations that
addressed the issue of the frequency
with which default judgment is entered
in opposition proceedings, one stated
that the reported experience of its
members is that default judgments are
just as frequent in opposition
proceedings as they are in cancellation
proceedings. In contrast, the other
acknowledged that default judgments
are rare in opposition proceedings.
Response: The TTAB’s expedited
cancellation proceeding pilot confirmed
only the high rate of default judgment
in cancellation cases asserting
abandonment or nonuse alone. Thus,
the Board did not have any basis to
propose refunds in opposition cases or
in cancellation cases asserting other
grounds. The NPRM refund proposal
was limited to cancellation cases
asserting only abandonment or nonuse,
in which the defendant does not enter
an appearance, the only filing was the
initial complaint, and that results in
default judgment. This was rooted in the
recognition of the high number of
abandonment or nonuse claims, the
high rate of default in cases in which
those are the only claims, and the ability
to handle refund processing in the
normal course of terminating a
cancellation proceeding. Based on
statistics from the TTAB’s recent twoyear expedited cancellation proceeding
pilot program, abandonment is the most
common claim in cancellation
proceedings, appearing in 34% of
filings. The default rate in cancellation
cases in which abandonment is the only
claim is 60%. The decision to process
refunds in such cases results in no net
increase in the cancellation filing fee for
many petitioners and also encourages
filings that help ensure the integrity of
the register. Cancellation cases

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involving assertion of other grounds
serve other purposes that may be
unrelated to the integrity of the register.
Opposition cases typically do not
involve abandonment claims and, even
if they result in default judgments do
not result in removal of registered but
unused marks from the register.
(3) Fees for Extensions of Time to
Oppose: This rule also increases fees for
filing requests for an extension of time
to file an opposition. Prior to enactment
of this rule, applicants could request: (1)
An initial 30-day extension for no fee,
(2) a subsequent 60-day extension (or an
initial 90-day extension) for a fee of
$100 for electronic filings and $200 for
paper filings, and (3) a final 60-day
extension for a fee of $200 for electronic
filings and $300 for paper filings. This
rule maintains this tiered structure with
an increase of $100 for the first 60-day
(or initial 90-day) electronic extension
and $200 for the final 60-day electronic
extension. Paper-filed extension
requests will increase by $200 for each
filing. The fees are per application, not
per class.
These fees are designed to yield
efficiencies by encouraging potential
opposers to make decisions regarding
filing an opposition sooner, thus
reducing delays to applicants whose
filings have been made the subject of
extensions of time to oppose.
Additionally, by encouraging earlier
decisions to initiate proceedings, the
uncertainty experienced by these
applicants will be ameliorated by
having their applications proceed to
determination on the merits sooner.
This will also help protect the integrity
of the trademark register by encouraging
timely decisions and filings to ensure
that the rights of other applicants and
the public are not adversely affected.
Further, currently about two-thirds of
the cost of TTAB operations is
subsidized by revenue from other
trademark processing fees. The
increases in existing TTAB fees set by
this rule, and the new fees set by this
rule, will not recover the full costs of
TTAB operations, but they are estimated
to increase cost recovery by 7% and to
bring the TTAB incrementally closer to
full cost recovery.
Finally, the extension of time to
oppose fees will help offset TTAB
processing costs. In FY 2019, the
USPTO received 20,502 requests for
extensions of time to file a notice of
opposition. It is customary for requests
that delay processing of records, such as
extensions, to incur a fee, which offsets
costs associated with processing the
filing, as well as the overall cost of
processing appeals and trials. These fees
are necessary to help achieve primary

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Office goals of recovering the aggregate
costs of operations, along with key
policy considerations, such as
encouraging efficient processing.
Comments: Two IP stakeholder
organizations and one law firm
provided comments on the extension of
time to oppose fees. One stakeholder
organization noted only the proposed
fee for the final 60-day extension of time
to oppose, and it is unclear whether the
organization’s comment concerns only
that extension or both types of
extensions that carry fees. All
commenters noted that fees for these
filings were first levied four years ago
and that the proposed increases are,
percentage-wise, substantial. Comments
also suggested that an applicant engaged
in settlement talks with a potential
opposer could attempt to force an
increase in costs for the potential
opposer to continue settlement talks by
not responding to attempts to settle the
parties’ differences. The law firm
suggested that potential opposers might
proceed to file a notice of opposition
rather than pay the increased fees for
the extensions of time to oppose. The
law firm also suggested that processing
of extensions of time to oppose is
largely automated and, therefore, the fee
increase cannot be justified on the
grounds of cost recovery.
Response: Many potential opposers
are aware of applications that have been
filed and that are perceived as
potentially conflicting well before a
mark is published for opposition, as
demonstrated by the large number of
Letters of Protest filed each year, many
of which seek to ensure an examining
attorney is aware of the protestor’s prior
registration or other concerns. A
potential opposer and an applicant can
initiate settlement discussions as soon
as the application is approved for
publication in the Trademark Official
Gazette and before it actually publishes.
Then, upon publication, there is a 30day opposition period, and a 30-day
extension of that period can be obtained
at no cost. Extension of time to oppose
fees do not apply until 60 days after the
date of publication. The additional 60
days that can be obtained for the period
covering 60–120 days from publication
carry a fee that is charged per
application, not per class of goods or
services in the application. A final
extension for another 60 days can be
obtained for a higher fee, also per
application, not per class. The fee
structure encourages parties to discuss
settlement of differences, but charges
more the longer the discussions go on
and applications are delayed.
When fees for extensions were first
proposed, commenters posited that

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potential opposers might file
oppositions rather than pay the
extension fees. The Board has not seen
any evidence of a significant change in
practice. On the contrary, the number of
extensions of time to oppose filed has
generally increased on an annual basis.
Opposition fees are paid per class for
the opposed application, while fees that
are required for extensions of the
opposition period accrue on a perapplication basis. As such, filing an
opposition to avoid paying an extension
fee when negotiations to avoid
commencement of an opposition are
progressing would in most instances
cost a potential opposer more. When
negotiations are not progressing, the
potential opposer may wish to consider
an earlier determination as to whether
filing of an opposition is desirable. In
trial cases, it is not unusual for the
Board to be informed that an adversary
is not willing to engage in settlement
talks. The Board has limited ability to
force such discussions. In addition, the
Board has received objections to its
approval of extensions of time to oppose
from applicants who assert that the
potential opposer has no real basis for
an opposition and seeks only to delay
the application. Thus, the extension fees
are intended to facilitate earlier
discussion of settlement and recognize
that delay can be a concern for both
parties.
As noted above in the discussion of
increases in filing fees for trial cases,
cost recovery by the TTAB is not
assessed solely on the basis of each
particular type of filing or Board
proceeding. As stakeholders have
indicated a preference for spreading out
cost recovery over many filings, rather
than be faced with steeply higher costs
for involved and protracted
proceedings, cost recovery for all Board
operations is facilitated by
apportionment of fees on filings that are
most frequently made. Extensions of
time to oppose are filed on an annual
basis at three times the rate of the filing
of notices of opposition. Therefore, they
are a logical type of filing for which to
charge nominal fees for longer
extensions. In addition, the fact that
processing of extensions of time to
oppose is largely automated does not
mean that there are no costs associated
with their processing. Development and
enhancements of automated processing
systems cost a great deal.
(4) Fees for Filing an Appeal Brief:
This rule increases the fee for filing a
notice of appeal by $25 per class, based
on inflation, and establishes new fees
for filing an appeal brief of $300 per
class if filed on paper and $200 per class
if filed through ESTTA. These fees

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address the TPAC report
recommendations to apply the majority
of the aggregate increases in appeal fees
to the costs incurred when an appeal
brief is filed, which increases the
likelihood that the appeal will have to
be decided on the merits.
(5) Fees for Filing Requests for
Extension of Time to File an Appeal
Brief: This rule sets fees for second and
subsequent requests for extensions of
time to file an appeal brief at $200 per
application if filed on paper and $100
per application if filed through ESTTA.
These fees yield efficiencies by
encouraging applicants to move forward
with their appeals, resulting in a quicker
resolution of the appeal, the pendency
of which can adversely impact the rights
of other applicants and registrants.
Implementing a tiered fee structure
minimizes costs to all applicants,
including smaller entities, as there is no
fee for a first request for extension of
time to file the appeal brief.
(6) Fees for Oral Hearing: This rule
sets the fee for a request for an oral
hearing at $500 per proceeding. Oral
hearings are not requested in the vast
majority of cases before the TTAB. They
are optional and are most useful when
cases involve complex issues, a complex
record, or highly technical goods and/or
services. This fee will help offset the
costs of scheduling and conducting the
hearing, as well as the maintenance of
equipment for remote participation.
Comments: Two IP stakeholder
organizations and one law firm
addressed the proposed fee for an oral
hearing in an ex parte appeal or trial
case. One organization noted its concern
but did not provide an explanation of
the basis for its concern, though it did
suggest limiting the fee to in-person
arguments. The other organization
concluded that the fee will discourage
the use of oral hearings and could
weaken a party’s chance of success in a
matter before the TTAB. The law firm
considers trademark cases to be
inherently complex and long and the fee
to be a disservice to the bar, to the
parties, and to fair determinations of
cases.
Response: This fee appropriately
places Board costs on actual users of
this service. Approximately 100
hearings have been requested on an
annual basis in recent years. While
some practitioners routinely request an
oral argument for cases in which they
are involved, most do not. The Board
has no evidence that outcomes for
parties that request an oral argument are
appreciably different than for those that
do not. No Board case is decided
without thorough review of the record
and briefs, which, as frequently stated,

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are of paramount importance. However,
hearings are available for those who
request them.
Because there is no current fee for
requesting an oral hearing, it is not
unusual for a party to request one only
to cancel shortly before the hearing.
Charging a fee for requesting a hearing
may help deter requests for hearings
that could later be cancelled. Hearings
incur costs that are not associated with
cases submitted for decision on the
briefs. The scheduling and running of
hearings requires a dedicated staff
position, and the TTAB must maintain
a hearing room for use when in-person
hearings are held and the technical
infrastructure necessary to offer parties
the option to appear by video rather
than incur the costs associated with
having to travel to the USPTO. This
infrastructure has a finite lifespan and
needs regular upgrading or replacement.
Discussion of Rule Changes
The USPTO revises § 2.6(a)(1)(i) to
increase the per-class fee for filing an
initial application on paper from $600
to $750.
The USPTO revises § 2.6(a)(1)(ii) to
increase the per-class fee for filing an
application under section 66(a) of the
Act from $400 to $500.
The USPTO revises § 2.6(a)(1)(iii) to
increase the per-class fee for filing a
TEAS Standard application from $275
to $350.
The USPTO revises § 2.6(a)(1)(iv) to
increase the per-class fee for filing a
TEAS Plus application from $225 to
$250.
The USPTO revises § 2.6(a)(1)(v) to
decrease the processing fee under
§ 2.22(c) from $125 to $100 per class.
The USPTO adds § 2.6(a)(11)(iii) to
establish a fee of $0 for filing a section
7 request to amend a registration
through TEAS prior to submission of a
section 8 or section 71 affidavit and that
consists only of the deletion of goods,
services, and/or classes.
The USPTO revises § 2.6(a)(12)(i) and
(ii) to increase the per-class fee for filing
a section 8 affidavit from $225 to $325
for a paper submission and from $125
to $225 for a TEAS submission.
The USPTO adds § 2.6(a)(12)(iii) and
(iv) to establish fees for the deletion of
goods, services, and/or classes after
submission and prior to acceptance of a
section 8 affidavit. The addition of
§ 2.6(a)(12)(iii) and (iv) sets the per-class
fee at $350 for a paper submission and
$250 for a TEAS submission.
The USPTO revises § 2.6(a)(15) to
establish separate fees for petitions to
the Director under §§ 2.146 or 2.147 and
petitions to revive an abandoned
application under § 2.66. The revisions

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to § 2.6(a)(15)(i) and (ii) set the fee for
filing a petition to the Director under
§§ 2.146 or 2.147 at $350 for a paper
submission and $250 for a TEAS
submission. The addition of
§ 2.6(a)(15)(iii) and (iv) sets the fee for
filing a petition to revive an abandoned
application under § 2.66 at $250 for a
paper submission and $150 for a TEAS
submission.
The USPTO revises § 2.6(a)(16)(i) and
(ii) to increase the per-class fee for filing
a petition to cancel from $500 to $700
for a paper submission and from $400
to $600 for an ESTTA submission.
The USPTO revises § 2.6(a)(17)(i) and
(ii) to increase the per-class fee for filing
a notice of opposition from $500 to $700
for a paper submission and from $400
to $600 for an ESTTA submission.
The USPTO revises § 2.6(a)(18) to
increase the fee for filing an ex parte
appeal and to establish new fees for
requests for an extension of time to file
an appeal brief and for filing a brief in
an ex parte appeal. The revisions to
§ 2.6(a)(18)(i) and (ii) increase the perclass fee for filing an ex parte appeal
from $300 to $325 for a paper
submission and from $200 to $225 for
an ESTTA submission. The addition of
§ 2.6(a)(18)(iii) sets the per-application
fee for filing a first request for an
extension of time to file an appeal brief
at $0. The addition of § 2.6(a)(18)(iv)
and (v) sets the per-application fee for
filing a second or subsequent request for
an extension of time to file an appeal
brief at $200 for a paper submission and
$100 for an ESTTA submission. The
addition of § 2.6(a)(18)(vi) and (vii) sets
the per-class fee for filing a brief in an
ex parte appeal at $300 for a paper
submission and $200 for an ESTTA
submission.
The USPTO revises § 2.6(a)(22)(i) and
(ii) to increase the fee for filing a request
for an extension of time to file a notice
of opposition pursuant to
§ 2.102(c)(1)(ii) or (c)(2) from $200 to
$400 for a paper submission and from
$100 to $200 for an ESTTA submission.
The USPTO revises § 2.6(a)(23)(i) and
(ii) to increase the fee for filing a request
for an extension of time to file a notice
of opposition pursuant to § 2.102(c)(3)
from $300 to $500 for a paper
submission and from $200 to $400 for
an ESTTA submission.
The USPTO adds § 2.6(a)(24) to
establish a fee for filing a request for an
oral hearing before the TTAB of $500
per proceeding.
The USPTO adds § 2.6(a)(25) to
establish a fee of $50 for the filing of a
letter of protest per subject application.
The USPTO revises § 2.114(a) to
provide that a partial refund of the fee
for a petition to cancel, equal to the

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increase in that fee otherwise enacted in
this rulemaking, may be made in cases
of default judgment where there was no
appearance by a defendant and no
filings are made other than the petition
to cancel.
The USPTO adds § 2.149, which
codifies the procedures and
requirements for letters of protest.
The USPTO revises the section title
and restructures § 2.161 to set out the
requirements for section 8 affidavits or
declarations more clearly. The USPTO
also adds, at revised § 2.161(c), a
provision stating that if goods, services,
and/or classes are deleted from a
registration after submission and prior
to the acceptance of a section 8 affidavit
or declaration, the deletion must be
accompanied by the relevant fee under
§ 2.6(a)(12)(iii) or (iv) for each class from
which goods, services, and/or classes
are deleted.
The USPTO revises § 7.6(a)(6)(i) and
(ii) to increase the per-class fee for filing
a section 71 affidavit from $225 to $325
for a paper submission and from $125
to $225 for a TEAS submission.
The USPTO adds § 7.6(a)(6)(iii) and
(iv) to establish fees for the deletion of
goods, services, and/or classes after
submission and prior to acceptance of a
section 71 affidavit. The added
§ 7.6(a)(iii) and (iv) set the per-class fee
at $350 for a paper submission and $250
for a TEAS submission.
The USPTO revises the section title
and restructures § 7.37 to set out the
requirements for section 71 affidavits or
declarations more clearly. The USPTO
also adds, at revised § 7.37(c), a
provision stating that if goods, services,
and/or classes are deleted from a
registration after submission and prior
to acceptance of a section 71 affidavit or
declaration, the deletion must be
accompanied by the relevant fee under
§ 7.6(a)(6)(iii) or (iv) for each class from
which goods, services, and/or classes
are deleted.
Rulemaking Requirements
A. America Invents Act: This
rulemaking sets and adjusts fees under
section 10(a) of the AIA as amended by
the SUCCESS Act. Section 10(a) of the
AIA authorizes the Director to set or
adjust by rule any trademark fee
established, authorized, or charged
under the Trademark Act for any
services performed by, or materials
furnished by, the USPTO (see section 10
of the AIA, Pub. L. 112–29, 125 Stat.
284, 316–17, as amended by Pub. L.
115–273, 132 Stat. 4158). Section 10(e)
of the AIA sets forth the general
requirements for rulemakings that set or
adjust fees under this authority. In
particular, section 10(e)(1) requires the

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Director to publish in the Federal
Register any proposed fee change under
section 10 and include in such
publication the specific rationale and
purpose for the proposal, including the
possible expectations or benefits
resulting from the proposed change. For
such rulemakings, the AIA requires that
the USPTO provide a public comment
period of not less than 45 days.
The TPAC advises the Under
Secretary of Commerce for Intellectual
Property and Director of the USPTO on
the management, policies, goals,
performance, budget, and user fees of
trademark operations. When adopting
fees under section 10 of the AIA, the
AIA requires the Director to provide the
TPAC with the proposed trademarkrelated fees at least 45 days prior to
publishing them in the Federal Register.
The TPAC then has at least 30 days
within which to deliberate, consider,
and comment on the proposal, as well
as hold a public hearing(s) on the
proposed fees. The TPAC must make a
written report available to the public of
the comments, advice, and
recommendations of the committee
regarding the proposed fees before the
USPTO issues any final fees. The
USPTO will consider and analyze any
comments, advice, or recommendations
received from the TPAC before finally
setting or adjusting fees.
Consistent with the requirements of
the AIA, on August 28, 2019, the
Director notified the TPAC of the
USPTO’s intent to set or adjust
trademark fees and submitted a
preliminary trademark fee proposal with
supporting materials. The preliminary
trademark fee proposal and associated
materials are available at http://
www.uspto.gov/about-us/performanceand-planning/fee-setting-and-adjusting.
The TPAC held a public hearing in
Alexandria, Virginia, on September 23,
2019. Transcripts of this hearing and
comments submitted to the TPAC in
writing are available for review at http://
www.uspto.gov/about-us/performanceand-planning/fee-setting-and-adjusting.
The TPAC subsequently issued a report,
dated October 31, 2019, regarding the
preliminary proposed fees. The report
can be found online at http://
www.uspto.gov/about-us/performanceand-planning/fee-setting-and-adjusting.
B. Final Regulatory Flexibility
Analysis: The USPTO publishes this
Final Regulatory Flexibility Analysis
(FRFA) as required by the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601 et
seq.) to examine the impact of the
USPTO’s proposed changes to
trademark fees on small entities. Under
the RFA, whenever an agency is
required by 5 U.S.C. 553 (or any other

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73211

law) to publish an NPRM, the agency
must prepare and make available for
public comment a FRFA, unless the
agency certifies under 5 U.S.C. 605(b)
that the proposed rule, if implemented,
will not have a significant economic
impact on a substantial number of small
entities (see 5 U.S.C. 603, 605). The
USPTO published an Initial Regulatory
Flexibility Analysis (IRFA), along with
the NPRM, on June 19, 2020 (85 FR
37040). The USPTO received no
comments from the public directly
applicable to the IFRA, as stated below
in Item 2.
Items 1–6 below discuss the six items
specified in 5 U.S.C. 604(a)(1)–(6) to be
addressed in a FRFA. Item 6 discusses
alternatives considered by the Office.
1. Succinct statement of the need for,
and objectives of, the rule:
The USPTO is setting and adjusting
certain trademark fees as authorized by
section 10 of the AIA, as amended by
Public Law 115–273, 132 Stat. 4158 (the
SUCCESS Act). The fee schedule
established under section 10 in this
rulemaking will, based on the
assumptions found in the FY 2021
Congressional Justification, recover the
aggregate estimated costs to the USPTO
while achieving strategic and
operational goals, such as implementing
measures to maintain trademark
pendency and high trademark quality,
modernizing the trademark IT systems,
continuing important programs for
stakeholder and public outreach,
enhancing operations of the TTAB, and
maintaining a sufficient operating
reserve. Aggregate costs are estimated
through the USPTO budget formulation
process with the annual preparation of
a five-year performance-based budget
request. Revenues are estimated based
on the projected demand (workload) for
trademark products and services and fee
rates.
The policy objectives of the rule are
to: (1) Better align fees with costs, (2)
protect the integrity of the trademark
register, (3) improve the efficiency of
USPTO processes related to trademark
and TTAB operations, and (4) ensure
financial sustainability to facilitate
effective trademark operations. The
legal basis for the rule is section 10 of
the AIA, as amended, which provides
the authority for the Director to set or
adjust by rule any fee established,
authorized, or charged under the
Trademark Act of 1946, 15 U.S.C. 1051
et seq., as amended. See also section 31
of the Trademark Act, 15 U.S.C. 1113.
2. A statement of the significant issues
raised by the public comments in
response to the initial regulatory
flexibility analysis, a statement of the
assessment of the agency of such issues,

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and a statement of any changes made in
the proposed rule as a result of such
comments:
The USPTO did not receive any
public comments in response to the
IRFA. However, the Office received
comments about fees in general, as well
as particular fees, and their impact on
small entities, which are further
discussed in the preamble.
3. The response of the agency to any
comments filed by the Chief Counsel for
Advocacy of the Small Business
Administration in response to the
proposed rule, and a detailed statement
of any change made to the proposed
rule in the final rule as a result of the
comments:
The USPTO did not receive any
comments filed by the Chief Counsel for
Advocacy of the Small Business
Administration in response to the
proposed rule.
4. Description of and an estimate of
the number of small entities to which
the rule will apply or an explanation of
why no such estimate is available:
The USPTO does not collect or
maintain statistics in trademark cases on
small- versus large-entity applicants,
and this information would be required
in order to determine the number of
small entities that would be affected by
the proposed rule.
This rule applies to any entity filing
trademark documents with the USPTO.
The USPTO estimates, based on the
assumptions found in the FY 2021
Congressional Justification, that during
the first full fiscal year under the fees as
proposed, the USPTO would expect to
collect approximately $76 million more
in trademark processing and TTAB fees
in FY 2021. The USPTO would receive
an additional $40 million in fees from
applications for the registration of a
mark, including requests for extension
of protection and subsequent
designations; $2 million more from
petitions and letters of protest; and $27
million more for section 8 and section
71 affidavits. TTAB fees would increase
by $6 million.
Trademark fees are collected for
trademark-related services and products
at different points in time in the
trademark application examination
process and over the lifecycle of the
registration. Approximately 55% of all
trademark fee collections are from
application filing fees. Fees for TTAB
proceedings and appeals comprise 2.5%
of revenues. Fees from other trademark
activities, petitions, assignments and
certifications, and Madrid processing
are approximately 5% of revenues. Fees
for filing post-registration and intent-touse filings, which subsidize the costs of

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filing, search, examination, and TTAB
activities, comprise 37.5%.
The USPTO’s five-year estimated
aggregate trademark fee revenue is based
on the number of trademark
applications and other fee-related filings
it expects to receive for a given fiscal
year and work it expects to process in
a given fiscal year (an indicator of future
fee workload and budgetary
requirements). Within the iterative
process for estimating aggregate
revenue, the USPTO adjusts individual
fee rates up or down based on policy
and cost considerations and then
multiplies the resulting fee rates by
appropriate workload volumes to
calculate a revenue estimate for each
fee, which is then used to calculate the
aggregate revenue. Additional details
about the USPTO’s aggregate revenue,
including projected workloads by fee,
are available at https://www.uspto.gov/
about-us/performance-and-planning/
fee-setting-and-adjusting.
5. Description of the reporting,
recordkeeping, and other compliance
requirements of the final rule, including
an estimate of the classes of small
entities which will be subject to the
requirement and the type of professional
skills necessary for preparation of the
report or record:
The final rule imposes no new
reporting or recordkeeping
requirements. The main purpose of the
final rule is to set and adjust trademark
fees. The final rule also codifies new
procedural regulations at 37 CFR 2.149
for the submission of letters of protest.
The USPTO does not collect or maintain
statistics in trademark cases on smallversus large-entity applicants and is
unable to provide an estimate of the
classes of small entities that will be
subject to the new procedural
requirements. However, the USPTO
does not anticipate that the final rule
would have a disproportionate impact
upon any particular class of small or
large entities.
6. Description of the steps the agency
has taken to minimize the significant
economic impact on small entities
consistent with the stated objectives of
applicable statutes, including a
statement of the factual, policy, and
legal reasons for selecting the
alternative adopted in the final rule and
why each one of the other significant
alternatives to the rule considered by
the agency which affect the impact on
small entities was rejected:
The USPTO considered four
alternatives, based on the assumptions
found in the FY 2021 Congressional
Justification, before enacting this rule:
(1) The adjustments included in this
final rule, (2) an across-the-board

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adjustment of 22%, (3) the unit cost of
providing services based on FY 2019
costs, and (4) no change to the baseline
of current fees. The alternatives are each
explained here with additional
information regarding how each
alternative was developed and the
aggregate revenue estimated. A
description of the Aggregate Revenue
Methodologies is available at http://
www.uspto.gov/about-us/performanceand-planning/fee-setting-and-adjusting.
The USPTO is setting or adjusting
trademark fees codified in 37 CFR parts
2 and 7. Fees are adjusted for all
application filing types (i.e., paper
applications, applications filed via
TEAS, and requests for extension of
protection under section 66(a) of the
Trademark Act (15 U.S.C. 1141f)). The
USPTO also sets or adjusts certain other
trademark processing fees to further
effective administration of the
trademark system. For example, the rule
increases the fees for certain petitions to
the Director as well as section 8 and
section 71 affidavits, sets a new fee and
proposes procedural regulations for
filing a letter of protest, and sets new
fees for deleting goods, services, and/or
classes from a registration after
submission and prior to acceptance of a
section 8 or section 71 affidavit.
The USPTO chose the alternative
established in this rule because it will
enable the Office to achieve its goals
effectively and efficiently without
unduly burdening small entities,
erecting barriers to entry, or stifling
incentives to innovate. The alternative
established here secures the USPTO’s
objectives for meeting the strategic goals
of encouraging broader usage of IP
rights-protection mechanisms and
participation by more trademark owners
and more efficient resolution of appeals
and inter partes proceedings at the
TTAB by increasing revenue to meet the
Office’s aggregate future costs. In
particular, the new fee structure for
requests to delete goods, services, and/
or classes from a registration will
protect the integrity of the register and
the efficiency of the process by
incentivizing both more timely filings
and proactive action by applicants and
registrants. The increased efficiencies
realized through this rule will benefit all
applicants and registrants by allowing
registrations to be granted in a timely
manner and more efficiently by
removing unused marks and
unsupported goods and services from
the register. All trademark applicants
and registrants should benefit from the
efficiency that will be realized under the
final rule.
With regard to the new regulations
governing the filing of letters of protest,

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the USPTO anticipates that the impact
to affected entities will be small. The
proposed fee of $50 is set at a level high
enough to recognize there are processing
costs and deter the filing of unsupported
or irrelevant filings, but low enough so
as not to discourage the filing of
relevant, well-supported letters of
protest. In addition, the new procedural
regulations for filing letters of protest
are not anticipated to significantly
impact affected entities because the new
regulations are based on existing
informal procedures set out in the
TMEP.
Finally, the new provision at
§ 2.114(a) provides that a partial refund
of the fee for a petition to cancel may
be made in cases of default judgement
where there was no appearance by a
defendant and no filings were made
other than the petition to cancel. This
change will balance the cost recovery
obtained from the increase in the fee for
a petition to cancel, a case type that has
increased markedly in recent years,
against the benefit of having petitions to
cancel filed to remove registrations from
the register when petitioners have
determined through their investigations
that the registered marks are no longer
in use. In such situations, default
judgments often result, efficiently
clearing the register of marks that would
otherwise stand as potential bars to
applications seeking to register similar
marks. This reduces costs for applicants
filing such applications.
The fee schedule for this alternative
(labeled ‘‘Alternative 1—Final Rule’’) is
available in the document entitled
‘‘Final Regulatory Flexibility Act
Tables’’ at http://www.uspto.gov/aboutus/performance-and-planning/feesetting-and-adjusting.
Another alternative to setting and
adjusting fees that was considered was
to increase all fees by the same 22%
across the board. This alternative would
maintain the status quo structure of cost
recovery, where processing and
examination costs are subsidized by fees
paid for intent-to-use and postregistration maintenance filings (both of
which exceed the cost of performing
these services), given that all fees would
be adjusted by the same escalation
factor. This structure would promote
innovation strategies and allow
applicants to gain access to the
trademark system through fees set below
cost, while registrants would pay
maintenance fees above cost to
subsidize the below-cost front-end fees.
This alternative was ultimately rejected.
Although this alternative generates
sufficient aggregate revenue to recover
aggregate operating costs, unlike the
final rule fee structure, there would be

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no improvements in fee schedule
design. As such, this alternative would
not accomplish the stated objective of
enhancing the integrity of the register by
incentivizing users to maintain accurate
goods and/or services. Further, it would
not enhance the efficiency of the
process, as it would offer no new
incentives for users to timely file
applications and other filings or to
resolve appeals and inter partes
proceedings at the TTAB more
expeditiously. The fee schedule for this
alternative (labeled ‘‘Alternative 2—
Across-the-Board Adjustment’’) is
available in the document entitled
‘‘Final Regulatory Flexibility Act
Tables’’ at http://www.uspto.gov/aboutus/performance-and-planning/feesetting-and-adjusting.
A third alternative that was
considered was to set all trademark fees
to allow for the USPTO to recover 100%
of the unit costs associated with each
product or service provided, based on
the historical unit costs of the products
and services provided by the USPTO.
The USPTO uses activity based
information to determine the unit costs
of activities that contribute to the
services and processes provided by
individual fees. It is common practice in
the Federal Government to set a
particular fee at a level that recovers the
cost of a given good or service. In Office
of Management and Budget (OMB)
Circular A–25, User Charges, the OMB
states that user charges (fees) should be
sufficient to recover the full cost to the
Federal Government of providing the
particular service, resource, or good,
when the Government is acting in its
capacity as sovereign. Under the unit
cost recovery alternative, fees are
generally set in line with the FY 2019
cost of providing the product or service.
The USPTO recognizes that this
approach does not account for changes
in the fee structure or inflationary
factors that could likely increase the
costs of certain trademark services and
necessitate higher fees in the out-years.
However, the USPTO contends that the
FY 2019 data is the best unit cost data
available to inform this analysis. This
alternative would produce a structure in
which application and processing fees
would increase significantly for all
applicants, and intent-to-use and postregistration maintenance filing fees
would decrease dramatically when
compared with current fees. In addition,
these fees would change from year to
year based on the number of
applications submitted. This alternative
was rejected because it was determined
that the unit costs for any given product
or service can vary from year to year,

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73213

such that a yearly review of all, and an
adjustment to many, trademark fees
would be continually required and
could also lead to consumer confusion
regarding the amount at which any
given trademark fee was currently set
and what the relevant fee would be in
the future. Additionally, this alternative
does not address improvements in fee
design to accomplish the stated
objectives of encouraging broader usage
of IP rights-protection mechanisms and
participation by more trademark owners
as well as practices that improve the
efficiency of the process. The fee
schedule for this alternative (labeled
‘‘Alternative 3—Unit Cost Recovery’’) is
available in the document entitled
‘‘Final Regulatory Flexibility Act
Tables’’ at http://www.uspto.gov/aboutus/performance-and-planning/feesetting-and-adjusting.
A final alternative to setting and
adjusting fees would be to take no
action at this time regarding trademark
fees and to leave all trademark fees as
currently set. This alternative was
rejected because, due to changes in
demand for certain services and rising
costs, the Office has determined that a
fee increase is needed to meet future
budgetary requirements as described in
the FY 2021 Congressional Justification.
Further, as previously explained, the fee
schedule established in this final rule
will assist in promoting access to the
trademark system, protecting the
integrity of the register, and promoting
the efficiency of the trademark
registration process by incentivizing: (1)
Maintenance of registrations for goods
and services for which marks are
actually in use, (2) more timely filing of
applications and other documents, and
(3) faster resolution of appeals and inter
partes proceedings at the TTAB. The fee
schedule for this alternative (labeled
‘‘Alternative 4—Baseline—Current Fee
Schedule’’) is available in the document
entitled ‘‘Final Regulatory Flexibility
Act Tables’’ at http://www.uspto.gov/
about-us/performance-and-planning/
fee-setting-and-adjusting.
C. Executive Order 12866 (Regulatory
Planning and Review): This rule has
been determined to be Significant for
purposes of Executive Order 12866
(Sept. 30, 1993).
D. Executive Order 13563 (Improving
Regulation and Regulatory Review): The
USPTO has complied with Executive
Order 13563 (Jan. 18, 2011).
Specifically, the USPTO has, to the
extent feasible and applicable: (1) Made
a reasoned determination that the
benefits justify the costs of the rule; (2)
tailored the rule to impose the least
burden on society consistent with
obtaining the regulatory objectives; (3)

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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Rules and Regulations

selected a regulatory approach that
maximizes net benefits; (4) specified
performance objectives; (5) identified
and assessed available alternatives; (6)
provided the public with a meaningful
opportunity to participate in the
regulatory process, including soliciting
the views of those likely affected prior
to issuing a notice of proposed
rulemaking, and provided online access
to the rulemaking docket; (7) attempted
to promote coordination, simplification,
and harmonization across government
agencies and identified goals designed
to promote innovation; (8) considered
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public; and (9) ensured
the objectivity of scientific and
technological information and
processes, to the extent applicable.
E. Executive Order 13771 (Reducing
Regulation and Controlling Regulatory
Costs): This final rule is not subject to
the requirements of Executive Order
13771 (Jan. 30, 2017) because this final
rule involves a transfer payment.
F. Executive Order 13132
(Federalism): This rule does not contain
policies with federalism implications
sufficient to warrant preparation of a
Federalism Assessment under Executive
Order 13132 (Aug. 4, 1999).
G. Executive Order 13175 (Tribal
Consultation): This rulemaking will not:
(1) Have substantial direct effects on one
or more Indian tribes; (2) impose
substantial direct compliance costs on
Indian tribal governments; or (3)
preempt tribal law. Therefore, a tribal
summary impact statement is not
required under Executive Order 13175
(Nov. 6, 2000).
H. Executive Order 13211 (Energy
Effects): This rulemaking is not a
significant energy action under
Executive Order 13211 because this
rulemaking is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Therefore,

a Statement of Energy Effects is not
required under Executive Order 13211
(May 18, 2001).
I. Executive Order 12988 (Civil Justice
Reform): This rulemaking meets
applicable standards to minimize
litigation, eliminate ambiguity, and
reduce burden as set forth in sections
3(a) and 3(b)(2) of Executive Order
12988 (Feb. 5, 1996).
J. Executive Order 13045 (Protection
of Children): This rulemaking does not
concern an environmental risk to health
or safety that may disproportionately
affect children under Executive Order
13045 (Apr. 21, 1997).
K. Executive Order 12630 (Taking of
Private Property): This rulemaking will
not affect a taking of private property or
otherwise have taking implications
under Executive Order 12630 (Mar. 15,
1988).
L. Congressional Review Act: Under
the Congressional Review Act
provisions of the Small Business
Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801 et seq.), prior to
issuing any final rule, the USPTO will
submit a report containing the final rule
and other required information to the
United States Senate, the United States
House of Representatives, and the
comptroller general of the Government
Accountability Office. The changes in
this rulemaking are not expected to
result in an annual effect on the
economy of $100 million or more, a
major increase in costs or prices, or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of United States-based enterprises to
compete with foreign-based enterprises
in domestic and export markets.
Therefore, this rulemaking is not
expected to result in a ‘‘major rule’’ as
defined in 5 U.S.C. 804(2).
M. Unfunded Mandates Reform Act of
1995: The changes set forth in this
rulemaking do not involve a Federal

OMB control No.

0651–0009
0651–0027
0651–0028
0651–0040
0651–0050
0651–0051
0651–0054
0651–0055
0651–0056
0651–0061

.....................
.....................
.....................
.....................
.....................
.....................
.....................
.....................
.....................
.....................

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intergovernmental mandate that will
result in the expenditure by State, local,
and tribal governments, in the aggregate,
of $100 million (as adjusted) or more in
any one year, or a Federal private sector
mandate that will result in the
expenditure by the private sector of
$100 million (as adjusted) or more in
any one year, and will not significantly
or uniquely affect small governments.
Therefore, no actions are necessary
under the provisions of the Unfunded
Mandates Reform Act of 1995. See 2
U.S.C. 1501 et seq.
N. National Environmental Policy Act
of 1969: This rulemaking will not have
any effect on the quality of the
environment and is thus categorically
excluded from review under the
National Environmental Policy Act of
1969. See 42 U.S.C. 4321 et seq.
O. National Technology Transfer and
Advancement Act of 1995: The
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) are not applicable because this
rulemaking does not contain provisions
that involve the use of technical
standards.
P. Paperwork Reduction Act of 1995:
This final rule involves information
collection requirements that are subject
to review and approval by OMB under
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). The collections
of information involved with this final
rule have been reviewed and previously
approved by OMB under OMB control
numbers 0651–0009, 0651–0027, 0651–
0028, 0651–0040, 0651–0050, 0651–
0051, 0651–0054, 0651–0055, 0651–
0056, and 0651–0061. This final rule
establishes and adjusts certain
trademark fees, which updates the total
annual non-hour cost burdens by
$33,440,550 as set out in the following
table:
Estimated
update in
total annual
non-hour
cost burdens
(fees) due to
final rule

Information collection title

Applications for Trademark Registration .................................................................................................
Recording Assignments ..........................................................................................................................
Fastener Quality Act Insignia Recordal Process ....................................................................................
Trademark Trial and Appeal Board (TTAB) Actions ...............................................................................
Response to Office Action and Voluntary Amendment Forms ...............................................................
Madrid Protocol .......................................................................................................................................
Substantive Submissions Made During Prosecution of the Trademark Application ..............................
Post Registration (Trademark Processing) .............................................................................................
Submissions Regarding Correspondence and Regarding Attorney Representation .............................
Trademark Petitions ................................................................................................................................

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17NOR1

$22,853,750
0
0
4,904,000
¥4,300
3,205,450
148,400
2,159,000
0
174,250

Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Rules and Regulations
This estimated cost burden increase is
based on the current OMB approved
response volumes associated with these
information collections, which may be
slightly different than the workflow
forecasts cited in other parts of this rule.
In addition, updates to the
aforementioned information collections
as a result of this final rule will be
submitted to OMB for approval prior to
the rule’s effective date.
Notwithstanding any other provision
of law, no person is required to respond
to nor shall a person be subject to a
penalty for failure to comply with a
collection of information subject to the
requirements of the Paperwork
Reduction Act unless that collection of
information has a currently valid OMB
control number.
List of Subjects
37 CFR Part 2
Administrative practice and
procedure, Courts, Lawyers,
Trademarks.
37 CFR Part 7
Administrative practice and
procedure, Trademarks.
For the reasons stated in the preamble
and under the authority contained in
section 10(a) of the AIA; 15 U.S.C. 1113,
1123; and 35 U.S.C. 2, as amended, the
USPTO amends parts 2 and 7 of title 37
as follows:
PART 2—RULES OF PRACTICE IN
TRADEMARK CASES
1. The authority citation for part 2 is
revised to read as follows:

■

Authority: 15 U.S.C. 1113, 1123; 35 U.S.C.
2; sec. 10, Pub. L. 112–29, 125 Stat. 284,
unless otherwise noted. Sec. 2.99 also issued
under secs. 16, 17, 60 Stat. 434; 15 U.S.C.
1066, 1067.

2. Amend § 2.6 by:
a. Revising paragraphs (a)(1)(i)
through (v);
■ b. Adding paragraph (a)(11)(iii);
■ c. Revising paragraphs (a)(12), (15)
through (18), (22), and (23); and
■ d. Adding paragraphs (a)(24) and (25).
The revisions and additions read as
follows:
■
■

§ 2.6

Trademark fees.

(a) * * *
(1) * * *
(i) For filing an application on paper,
per class—$750.00
(ii) For filing an application under
section 66(a) of the Act, per class—
$500.00
(iii) For filing a TEAS Standard
application, per class—$350.00
(iv) For filing a TEAS Plus application
under § 2.22, per class—$250.00

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(v) Additional processing fee under
§ 2.22(c), per class—$100.00
*
*
*
*
*
(11) * * *
(iii) For filing an amendment to a
registration prior to submission of an
affidavit under section 8 or section 71
of the Act and consisting only of the
deletion of goods, services, and/or
classes—$0.00
(12) Affidavit under section 8. (i) For
filing an affidavit under section 8 of the
Act on paper, per class—$325.00
(ii) For filing an affidavit under
section 8 of the Act through TEAS, per
class—$225.00
(iii) For deleting goods, services, and/
or classes after submission and prior to
acceptance of an affidavit under section
8 of the Act on paper, per class—
$350.00
(iv) For deleting goods, services, and/
or classes after submission and prior to
acceptance of an affidavit under section
8 of the Act through TEAS, per class—
$250.00
*
*
*
*
*
(15) Petitions to the Director. (i) For
filing a petition under § 2.146 or § 2.147
on paper—$350.00
(ii) For filing a petition under § 2.146
or § 2.147 through TEAS—$250.00
(iii) For filing a petition under § 2.66
on paper—$250.00
(iv) For filing a petition under § 2.66
through TEAS—$150.00
(16) Petition to cancel. (i) For filing a
petition to cancel on paper, per class—
$700.00
(ii) For filing a petition to cancel
through ESTTA, per class—$600.00
(17) Notice of opposition. (i) For filing
a notice of opposition on paper, per
class—$700.00
(ii) For filing a notice of opposition
through ESTTA, per class—$600.00
(18) Ex parte appeal. (i) For filing an
ex parte appeal to the Trademark Trial
and Appeal Board on paper, per class—
$325.00
(ii) For filing an ex parte appeal to the
Trademark Trial and Appeal Board
through ESTTA, per class—$225.00
(iii) For filing a first request for an
extension of time to file an appeal brief,
per application—$0.00
(iv) For filing a second or subsequent
request for an extension of time to file
an appeal brief on paper, per
application—$200.00
(v) For filing a second or subsequent
request for an extension of time to file
an appeal brief through ESTTA, per
application—$100.00
(vi) For filing an appeal brief on
paper, per class—$300.00
(vii) For filing an appeal brief through
ESTTA, per class—$200.00
*
*
*
*
*

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(22) Extension of time for filing a
notice of opposition under
§ 2.102(c)(1)(ii) or (c)(2). (i) For filing a
request for an extension of time to file
a notice of opposition under
§ 2.102(c)(1)(ii) or (c)(2) on paper—
$400.00
(ii) For filing a request for an
extension of time to file a notice of
opposition under § 2.102(c)(1)(ii) or
(c)(2) through ESTTA—$200.00
(23) Extension of time for filing a
notice of opposition under § 2.102(c)(3).
(i) For filing a request for an extension
of time to file a notice of opposition
under § 2.102(c)(3) on paper—$500.00
(ii) For filing a request for an
extension of time to file a notice of
opposition under § 2.102(c)(3) through
ESTTA—$400.00
(24) Oral hearing. For filing a request
for an oral hearing before the Trademark
Trial and Appeal Board, per
proceeding—$500.00
(25) Letter of protest. For filing a letter
of protest, per subject application—
$50.00
*
*
*
*
*
■ 3. Amend § 2.114 by revising
paragraph (a) to read as follows:
§ 2.114

Answer.

(a)(1) If no answer is filed within the
time initially set, or as later may be reset
by the Board, the petition may be
decided as in the case of default. The
failure to file a timely answer tolls all
deadlines, including the discovery
conference, until the issue of default is
resolved.
(2) If the cancellation proceeding is
based solely on abandonment or nonuse
and default judgment is entered with no
appearance by the defendant, and no
filings are made other than the petition
to cancel, $200 per class of the petition
to cancel fee may be refunded.
*
*
*
*
*
■ 4. Add § 2.149 before the center
heading ‘‘Certificate’’ to read as follows:
§ 2.149 Letters of protest against pending
applications.

(a) A third party may submit, for
consideration and entry in the record of
a trademark application, objective
evidence relevant to the examination of
the application for a ground for refusal
of registration if the submission is made
in accordance with this section.
(b) A party protesting multiple
applications must file a separate
submission under this section for each
application.
(c) Any submission under this section
must be filed no later than 30 days after
the date the application is published for
opposition under section 12(a) of the

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Act and § 2.80 of this part. If the subject
application cannot be withdrawn from
issuance of a registration while
consideration of the protest is pending,
the protest may be considered untimely.
(d)(1) If the letter of protest is filed
before publication of the subject
application, the evidence must be
relevant to the identified ground(s) for
refusal, such that it is appropriate for
the examining attorney to consider
whether to issue a refusal or make a
requirement under the Act or this part.
(2) If the letter of protest is filed on
or within 30 days after the date of
publication of the subject application,
the evidence must establish a prima
facie case for refusal on the identified
ground(s), such that failure to issue a
refusal or to make a requirement would
likely result in issuance of a registration
in violation of the Act or parts 2 or 7
of this section.
(e) Filing a submission under this
section does not stay or extend the time
for filing a notice of opposition.
(f) Any submission under this section
must be made in writing, filed through
TEAS, and include:
(1) The fee required by § 2.6(a)(25);
(2) The serial number of the pending
application that is the subject of the
protest;
(3) An itemized evidence index that
does not identify the protestor or its
representatives, does not contain legal
argument, and includes:
(i) An identification of the documents,
or portions of documents, being
submitted as evidence. The submission
may not total more than 10 items of
evidence in support of a specified
ground of refusal and more than 75 total
pages of evidence without a detailed
and sufficient explanation that
establishes the special circumstances
that necessitate providing more than 10
items of evidence per refusal ground or
more than 75 total pages of evidence;
and
(ii) A concise factual statement of the
relevant ground(s) for refusal of
registration appropriate in ex parte
examination that each item identified
supports; and
(4) A clear and legible copy of each
item identified in the evidence index
where:
(i) Copies of third-party registrations
come from the electronic records of the
Office and show the current status and
title of the registration;
(ii) Evidence from the internet
includes the date the evidence was
published or accessed and the complete
URL address of the website; and
(iii) Copies of printed publications
identify the publication name and date
of publication.

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(g) Any submission under this section
may not be entered or considered by the
Office if:
(1) Any part of the submission is not
in compliance with this section;
(2) The application record shows that
the examining attorney already
considered the refusal ground(s)
specified in the submission; or
(3) A provision of the Act or parts 2
or 7 of this chapter precludes
acceptance of the submission.
(h) If a submission is determined to be
in compliance with this section, only
the specified ground(s) for refusal and
the provided evidence relevant to the
ground(s) for refusal will be included in
the application record for consideration
by the examining attorney. An applicant
should not reply to the entry into the
application record of evidence entered
under this section.
(i) Any determination whether to
include in an application record the
ground(s) or evidence for a refusal of
registration in a submission under this
section is not petitionable.
(j) A third party filing a submission
under this section will not receive any
communication from the Office relating
to the submission other than
acknowledgement that it has been
received by the Office and notification
of whether the submission is found to
be compliant or non-compliant with this
section. Communications with the third
party will not be made of record in the
application. The Office will not accept
amendments to a non-compliant
submission that was previously filed.
Instead, a third party who previously
filed a non-compliant submission may
file another submission that meets the
requirements of paragraph (f) of this
section, provided the time period for
filing a submission in paragraph (c) of
this section has not closed.
(k) The limited involvement of the
third party ends with the filing of the
submission under this section. The third
party may not directly contact the
examining attorney assigned to the
application.
■ 5. Revise § 2.161 to read as follows:
§ 2.161 Requirements for a complete
affidavit or declaration of use in commerce
or excusable nonuse; requirement for the
submission of additional information,
exhibits, affidavits or declarations, and
specimens; and fee for deletions of goods,
services, and/or classes from a registration.

(a) Requirements for a complete
affidavit or declaration. A complete
affidavit or declaration under section 8
of the Act must:
(1) Be filed by the owner within the
period set forth in § 2.160(a);
(2) Include a verified statement
attesting to the use in commerce or

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excusable nonuse of the mark within the
period set forth in section 8 of the Act.
This verified statement must be
executed on or after the beginning of the
filing period specified in § 2.160(a);
(3) Include the U.S. registration
number;
(4)(i) Include the fee required by § 2.6
for each class that the affidavit or
declaration covers;
(ii) If the affidavit or declaration is
filed during the grace period under
section 8(a)(3) of the Act, include the
grace period surcharge per class
required by § 2.6; and
(iii) If at least one fee is submitted for
a multiple-class registration, but the fee
is insufficient to cover all the classes,
and the class(es) to which the fee(s)
should be applied is not specified, the
Office will issue a notice requiring
either submission of the additional
fee(s) or specification of the class(es) to
which the initial fee(s) should be
applied. Additional fees may be
submitted if the requirements of § 2.164
are met. If the additional fee(s) is not
submitted within the time period set out
in the Office action, and the class(es) to
which the original fee(s) should be
applied is not specified, the Office will
presume that the fee(s) covers the
classes in ascending order, beginning
with the lowest numbered class;
(5)(i) Specify the goods, services, or
nature of the collective membership
organization for which the mark is in
use in commerce, and/or the goods,
services, or nature of the collective
membership organization for which
excusable nonuse is claimed under
paragraph (a)(6)(ii) of this section; and
(ii) Specify the goods, services, or
classes being deleted from the
registration, if the affidavit or
declaration covers fewer than all the
goods, services, or classes in the
registration;
(6)(i) State that the registered mark is
in use in commerce; or
(ii) If the registered mark is not in use
in commerce on or in connection with
all the goods, services, or classes
specified in the registration, set forth the
date when such use of the mark in
commerce stopped and the approximate
date when such use is expected to
resume, and recite facts to show that
nonuse as to those goods, services, or
classes is due to special circumstances
that excuse the nonuse and is not due
to an intention to abandon the mark;
and
(7) Include one specimen showing
how the mark is in use in commerce for
each class in the registration, unless
excusable nonuse is claimed under
paragraph (a)(6)(ii) of this section. When
requested by the Office, additional

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specimens must be provided. The
specimen must meet the requirements of
§ 2.56.
(8) Additional requirements for a
collective mark: In addition to the above
requirements, a complete affidavit or
declaration pertaining to a collective
mark must:
(i) State that the owner is exercising
legitimate control over the use of the
mark in commerce; and
(ii) If the registration issued from an
application based solely on section 44 of
the Act, state the nature of the owner’s
control over the use of the mark by the
members in the first affidavit or
declaration filed under paragraph (a)(1)
of this section.
(9) Additional requirements for a
certification mark: In addition to the
above requirements, a complete affidavit
or declaration pertaining to a
certification mark must:
(i) Include a copy of the certification
standards specified in § 2.45(a)(4)(i)(B);
(A) Submitting certification standards
for the first time. If the registration
issued from an application based solely
on section 44 of the Act, include a copy
of the certification standards in the first
affidavit or declaration filed under
paragraph (a)(1) of this section; or
(B) Certification standards submitted
in prior filing. If the certification
standards in use at the time of filing the
affidavit or declaration have not
changed since the date they were
previously submitted to the Office,
include a statement to that effect. If the
certification standards in use at the time
of filing the affidavit or declaration have
changed since the date they were
previously submitted to the Office,
include a copy of the revised
certification standards;
(ii) State that the owner is exercising
legitimate control over the use of the
mark in commerce; and
(iii) Satisfy the requirements of
§ 2.45(a)(4)(i)(A) and (C).
(10) For requirements of a complete
affidavit or declaration of use in
commerce or excusable nonuse for a
registration that issued from a section
66(a) basis application, see § 7.37.
(b) Requirement for the submission of
additional information, exhibits,
affidavits or declarations, and
specimens. The Office may require the
owner to furnish such information,
exhibits, affidavits or declarations, and
such additional specimens as may be
reasonably necessary to the proper
examination of the affidavit or
declaration under section 8 of the Act or
for the Office to assess and promote the
accuracy and integrity of the register.
(c) Fee for deletions of goods, services,
and/or classes from a registration.

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Jkt 253001

Deletions by the owner of goods,
services, and/or classes from a
registration after submission and prior
to acceptance of the affidavit or
declaration must be accompanied by the
relevant fee in § 2.6(a)(12)(iii) or (iv).
PART 7—RULES OF PRACTICE IN
FILINGS PURSUANT TO THE
PROTOCOL RELATING TO THE
MADRID AGREEMENT CONCERNING
THE INTERNATIONAL REGISTRATION
OF MARKS
6. The authority citation for part 7
continues to read as follows:

■

Authority: 15 U.S.C. 1123, 35 U.S.C. 2,
unless otherwise noted.

7. Amend § 7.6 by revising paragraph
(a)(6) to read as follows:

■

§ 7.6

Schedule of U.S. process fees.

(a) * * *
(6) Affidavit under section 71. (i) For
filing an affidavit under section 71 of
the Act on paper, per class—$325.00
(ii) For filing an affidavit under
section 71 of the Act through TEAS, per
class—$225.00
(iii) For deleting goods, services, and/
or classes after submission and prior to
acceptance of an affidavit under section
71 of the Act on paper, per class—
$350.00
(iv) For deleting goods, services, and/
or classes after submission and prior to
acceptance of an affidavit under section
71 of the Act through TEAS, per class
—$250.00
*
*
*
*
*
■ 8. Revise § 7.37 to read as follows:
§ 7.37 Requirements for a complete
affidavit or declaration of use in commerce
or excusable nonuse; requirement for the
submission of additional information,
exhibits, affidavits or declarations, and
specimens; and fee for deletions of goods,
services, and/or classes from a registration.

(a) Requirements for a complete
affidavit or declaration. A complete
affidavit or declaration under section 71
of the Act must:
(1) Be filed by the holder of the
international registration within the
period set forth in § 7.36(b);
(2) Include a verified statement
attesting to the use in commerce or
excusable nonuse of the mark within the
period set forth in section 71 of the Act.
The verified statement must be executed
on or after the beginning of the filing
period specified in § 7.36(b). A person
who is properly authorized to sign on
behalf of the holder is:
(i) A person with legal authority to
bind the holder;
(ii) A person with firsthand
knowledge of the facts and actual or

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73217

implied authority to act on behalf of the
holder; or
(iii) An attorney, as defined in § 11.1
of this chapter, who has an actual
written or verbal power of attorney or an
implied power of attorney from the
holder;
(3) Include the U.S. registration
number;
(4)(i) Include the fee required by § 7.6
for each class that the affidavit or
declaration covers;
(ii) If the affidavit or declaration is
filed during the grace period under
section 71(a)(3) of the Act, include the
grace period surcharge per class
required by § 7.6;
(iii) If at least one fee is submitted for
a multiple-class registration, but the fee
is insufficient to cover all the classes,
and the class(es) to which the fee(s)
should be applied is not specified, the
Office will issue a notice requiring
either submission of the additional
fee(s) or specification of the class(es) to
which the initial fee(s) should be
applied. Additional fees may be
submitted if the requirements of § 7.39
are met. If the additional fee(s) is not
submitted within the time period set out
in the Office action, and the class(es) to
which the original fee(s) should be
applied is not specified, the Office will
presume that the fee(s) covers the
classes in ascending order, beginning
with the lowest numbered class;
(5)(i) Specify the goods, services, or
nature of the collective membership
organization for which the mark is in
use in commerce, and/or the goods,
services, or nature of the collective
membership organization for which
excusable nonuse is claimed under
paragraph (a)(6)(ii) of this section; and
(ii) Specify the goods, services, or
classes being deleted from the
registration, if the affidavit or
declaration covers fewer than all the
goods, services, or classes in the
registration;
(6)(i) State that the registered mark is
in use in commerce; or
(ii) If the registered mark is not in use
in commerce on or in connection with
all the goods, services, or classes
specified in the registration, set forth the
date when such use of the mark in
commerce stopped and the approximate
date when such use is expected to
resume, and recite facts to show that
nonuse as to those goods, services, or
classes is due to special circumstances
that excuse the nonuse and is not due
to an intention to abandon the mark;
and
(7) Include one specimen showing
how the mark is in use in commerce for
each class in the registration, unless
excusable nonuse is claimed under

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Federal Register / Vol. 85, No. 222 / Tuesday, November 17, 2020 / Rules and Regulations

paragraph (a)(6)(ii) of this section. When
requested by the Office, additional
specimens must be provided. The
specimen must meet the requirements of
§ 2.56 of this chapter.
(8) Additional requirements for a
collective mark: In addition to the above
requirements, a complete affidavit or
declaration pertaining to a collective
mark must:
(i) State that the holder is exercising
legitimate control over the use of the
mark in commerce; and
(ii) State the nature of the holder’s
control over the use of the mark by the
members in the first affidavit or
declaration filed under paragraph (a)(1)
of this section.
(9) Additional requirements for a
certification mark: In addition to the
above requirements, a complete affidavit
or declaration pertaining to a
certification mark must:
(i) Include a copy of the certification
standards specified in § 2.45(a)(4)(i)(B)
of this chapter;
(A) Submitting certification standards
for the first time. In the first affidavit or
declaration filed under paragraph (a)(1)
of this section, include a copy of the
certification standards; or
(B) Certification standards submitted
in prior filing. If the certification
standards in use at the time of filing the
affidavit or declaration have not
changed since the date they were
previously submitted to the Office,
include a statement to that effect. If the
certification standards in use at the time
of filing the affidavit or declaration have
changed since the date they were
previously submitted to the Office,
include a copy of the revised
certification standards;
(ii) State that the holder is exercising
legitimate control over the use of the
mark in commerce; and
(iii) Satisfy the requirements of
§ 2.45(a)(4)(i)(A) and (C) of this chapter.
(b) Requirement for the submission of
additional information, exhibits,
affidavits or declarations, and
specimens. The Office may require the
holder to furnish such information,
exhibits, affidavits or declarations, and
such additional specimens as may be
reasonably necessary to the proper
examination of the affidavit or
declaration under section 71 of the Act
or for the Office to assess and promote
the accuracy and integrity of the
register.
(c) Fee for deletions of goods, services,
and/or classes from a registration.
Deletions by the holder of goods,
services, and/or classes from a
registration after submission and prior
to acceptance of the affidavit or

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declaration must be accompanied by the
relevant fee in § 7.6(a)(6)(iii) or (iv).
Andrei Iancu,
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office.
[FR Doc. 2020–25222 Filed 11–16–20; 8:45 am]
BILLING CODE 3510–16–P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2017–0416; FRL–10016–
10–Region 7]

Air Plan Approval; Iowa; Air Quality
Implementation Plan—Muscatine
Sulfur Dioxide Nonattainment Area and
Start-up, Shutdown, Malfunction SIP
Call Withdrawal
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:

The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision,
submitted by the state of Iowa, through
the Iowa Department of Natural
Resources (IDNR), to the EPA on May
26, 2016, for the purpose of providing
for attainment of the 2010 1-hour
primary Sulfur Dioxide (SO2) National
Ambient Air Quality Standard (NAAQS)
in the Muscatine County, Iowa
nonattainment area (NAA). The EPA
concludes that Iowa has appropriately
demonstrated that its SIP provides for
attainment with the 2010 1-hour
primary SO2 NAAQS in the NAA, and
that the plan meets the other applicable
requirements under the Clean Air Act
(CAA or Act). As a part of approving the
attainment demonstration, the EPA is
taking final action to approve into the
Iowa SIP the SO2 emissions limits and
associated compliance parameters for
the NAA. The EPA is also applying a
policy regarding startup, shutdown, and
malfunction (SSM) exemption
provisions in the Iowa SIP that is
consistent with the EPA’s national
policy. In light of this policy and the
EPA’s evaluation of Iowa’s SIP, the EPA
is withdrawing the SIP call issued to
Iowa as part of the EPA’s 2015 SSM SIP
Action.
DATES: This rule will become effective
on December 17, 2020.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2017–0416. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
SUMMARY:

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some information may not be publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Atmospheric Programs Section, Air
Planning and Development Branch, Air
and Radiation Division, U.S.
Environmental Protection Agency,
Region 7, 11201 Renner Boulevard,
Lenexa, Kansas 66219. The EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday 8:30 a.m. to
4:30 p.m., excluding federal holidays.
FOR FURTHER INFORMATION CONTACT:
Ashley Keas, Environmental Protection
Agency, Region 7 Office, Air Quality
Planning Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219;
telephone number: (913) 551–7629;
email address: keas.ashley@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ and ‘‘our’’ is used, we mean
the EPA.
Table of Contents
I. Background for This Action
A. The Muscatine Attainment Plan
B. The EPA’s 2015 SSM SIP Action
C. The SSM SIP Call for Iowa
D. The EPA’s 2020 SSM SIP Guidance
Memorandum
II. The EPA’s Evaluation of the Iowa SIP
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background for This Action
A. The Muscatine Attainment Plan
On June 22, 2010, the EPA published
a new 1-hour primary SO2 NAAQS of 75
parts per billion (ppb), which is met at
an ambient air quality monitoring site
when the 3-year average of the annual
99th percentile of daily maximum 1hour average concentrations does not
exceed 75 ppb, as determined in
accordance with appendix T of 40 CFR
part 50.1 On August 5, 2013, the EPA
designated the first set of areas of the
country as nonattainment for the 2010
1-hour SO2 NAAQS, including the
partial Muscatine County NAA in
Iowa.2 The designations were effective
1 See

75 FR 35520, codified at 40 CFR 50.17(a)b).
78 FR 47191, codified at 40 CFR part 81,
subpart C.
2 See

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