T.M.E.P. § 1706
Standard of Review on Petition

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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1706 Standard of Review on Petition

The standard of review on petition depends on the particular section of the rules under which the petition is filed.

In review of an examining attorney's formal requirement under 37 C.F.R. §§2.63(b) and 2.146(a)(1), the standard of review is whether the examining attorney's judgment was correct, the same standard that the Trademark Trial and Appeal Board would use if it were considering the requirement on appeal. In re Du Pont Merck Pharmaceutical Co., 34 USPQ2d 1778 (Comm'r Pats. 1995); In re Stenographic Machines, Inc., 199 USPQ 313 (Comm'r Pats. 1978). However, in review of an examining attorney's action under 37 C.F.R. 2.146(a)(3), the Director will reverse the examining attorney only upon a finding of clear error or abuse of discretion. In re GTE Education Services, 34 USPQ2d 1478 (Comm'r Pats. 1994); In re Direct Access Communications (M.C.G.) Inc., 30 USPQ2d 1393 (Comm'r Pats. 1993).

The Director also uses the clear error or abuse of discretion standard when reviewing an action of the Trademark Trial and Appeal Board under 37 C.F.R. 2.146(a)(3). Riko Enterprises, Inc. v. Lindsley, 198 USPQ 480 (Comm'r Pats. 1977).

The Director reviews the actions of Post Registration examiners on affidavits of use or excusable nonuse under 15 U.S.C. 1058 or §1141k, renewal applications under 15 U.S.C. 1059, and amendments to registrations under 15 U.S.C. 1057, to determine whether the judgment of the examiner was correct. See In re Umax Data System, Inc., 40 USPQ2d 1539 (Comm'r Pats. 1996) (announcing change in standard of review of petitions to review Post Registration examiners' decisions on amendments to registrations under 15 U.S.C. 1057).

The Director reviews the denial of an application filing date to determine whether the denial was correct.