T.M.E.P. § 1605.03
Time for Filing Affidavit of Incontestability

Executive summary:

This document contains one section of the Trademark Manual of Examining Procedure (the "TMEP"), Fourth Edition (April 2005). This page was last updated in June 2007. You may return to one either the section index, or to the key word index. If you wish to search the TMEP, simply use the search box that appears on the bottom of every page of BitLaw--be sure to restrict your search to the TMEP in the pop-up list.

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1605.03 Time for Filing Affidavit of Incontestability

A §15 affidavit may not be filed until the federally registered mark has been in continuous use in commerce for at least five consecutive years after the date of registration. This may be any five-year period after the date of registration for marks registered under the Act of 1946, or after the date of publication under §12(c) for marks registered under the Acts of 1905 and 1881.

The registrant may file the affidavit within one year after the five-year period that is selected. 37 C.F.R. 2.167(f). The affidavit must be both executed and filed within that one-year period. If the affidavit is filed too early, the USPTO will not review it and will refund the filing fee. A new affidavit with fee can be submitted during the statutory filing period.

Under 37 C.F.R. 2.195(a)(2), an affidavit filed through TEAS is considered to have been filed on the date the USPTO receives the transmission, regardless of whether that date is a Saturday, Sunday, or Federal holiday within the District of Columbia. See TMEP §301 for more information about electronic filing.

If the affidavit is filed on paper, the owner may use certificate of mailing or certificate of facsimile transmission procedures to avoid lateness. See TMEP §§305.02 and 306.05.

See TMEP §1605.05 regarding a combined affidavit under §§8 and 15 of the Act.