T.M.E.P. § 1110
Request to Divide an Application

Executive summary:

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1110 Request to Divide an Application

37 C.F.R. 2.87. Dividing an application.

(a) An application may be physically divided into two or more separate applications upon the payment of a fee for each new application created and submission by the applicant of a request in accordance with paragraph (d) of this section.

(b) In the case of a request to divide out one or more entire classes from an application, only the fee for dividing an application under paragraph (a) of this section, as set forth in §2.6(a)(19), will be required. However, in the case of a request to divide out some, but not all, of the goods or services in a class, the application filing fee, as set forth in §2.6(a)(1), for each new separate application to be created by the division must be submitted, together with the fee for dividing an application under paragraph (a) of this section, as set forth in §2.6(a)(19).

(c) A request to divide an application may be filed at any time between the filing of the application and the date the Trademark Examining Attorney approves the mark for publication; or during an opposition, concurrent use, or interference proceeding, upon motion granted by the Trademark Trial and Appeal Board. Additionally, a request to divide an application under section 1(b) of the Act may be filed with a statement of use under §2.88 or at any time between the filing of a statement of use and the date the Trademark Examining Attorney approves the mark for registration.

(d) A request to divide an application should be made in a separate paper from any other amendment or response in the application. The title "Request to divide application." should appear at the top of the first page of the paper.

Under 37 C.F.R. 2.87(a), an applicant may divide the application into two or more separate applications upon payment of the applicable fees. When dividing an application, the applicant preserves the filing date for all the goods/services covered by the application. See 37 C.F.R. 2.87(b) and TMEP §1110.02 regarding the fees for a request to divide.

An applicant may request division of an application for any reason. For example, in an intent-to-use application, the applicant may wish to proceed to publication or registration with the goods/services on or in connection with which the applicant has used the mark in commerce and retain an active intent-to-use application for any remaining goods/services.

The applicant must file a request to divide if the applicant files an amendment to allege use before making use on all the goods/services for which applicant seeks registration under §1(b), or a statement of use before making use on all the goods/services specified in the notice of allowance. 37 C.F.R. §§2.76(c) and 2.88(c); TMEP §§1104.03(a) and 1109.03.