T.M.E.P. § 804.04
Persons Authorized to Sign Verification or Declaration
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804.04 Persons Authorized to Sign Verification or Declaration
Extract from 37 C.F.R. 2.33(a). The application must include a statement that is signed and verified (sworn to) or supported by a declaration under §2.20 by a person properly authorized to sign on behalf of the applicant. A person who is properly authorized to sign on behalf of the applicant is:
(1) a person with legal authority to bind the applicant; or
(2) a person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the applicant; or
(3) an attorney as defined in §10.1(c) of this chapter who has an actual or implied written or verbal power of attorney from the applicant.
Effective October 30, 1999, the Trademark Act does not specify the appropriate person to verify facts on behalf of an applicant. The definition of a "person properly authorized to sign on behalf of an applicant" is set forth in 37 C.F.R. 2.33(a). This definition applies to applications for registration, amendments to allege use, statements of use, requests for extensions of time to file statements of use, affidavits of continued use or excusable nonuse under 15 U.S.C. 1058, affidavits of incontestability under 15 U.S.C. 1065; and combined filings under 15 U.S.C. §§1058 and 1059. 37 C.F.R. §§2.76(b)(1), 2.88(b)(1), 2.89(b)(3), and 2.161(b). It also applies to declarations supporting amendments to dates of use, use of substitute specimens, claims of acquired distinctiveness under 15 U.S.C. 1052(f), amendments changing the basis for filing, requests for amendment or correction of registrations under 15 U.S.C. 1057, and designations of domestic representative.
Generally, the Office does not question the authority of the person who signs a verification, unless there is an inconsistency in the record as to the signatory's authority to sign. The Office presumes that papers are properly signed. In view of the broad definition of a "person properly authorized to sign on behalf of an applicant" in 37 C.F.R. 2.33(a), the fact that an application is signed by someone whose title refers to a different entity is not considered an inconsistency that warrants an inquiry as to whether the verification was properly signed.
Example: If an application is filed by "ABC Company, Inc.," and the verification is signed by an officer of "XYZ Company, Inc.," the Office will presume that XYZ Company, Inc. is a related company properly authorized to sign on behalf of ABC Company, Inc. The Office will not ask the applicant to explain how the person has authority to sign.
It is not necessary to set forth the title of the person signing the verification or to state the relationship between the applicant and the person who signed the verification.
If the person signing the verification is identified as a different person than the individual named as the applicant, or as representing a different legal entity than the juristic applicant, the Office will not question whether the proper party is listed as the applicant.
Example: If the applicant is Mary Smith, an individual, and the application is signed by John Smith, the Office will not question whether the proper party is listed as applicant.
Example: If the applicant is John Smith, an individual, and the application is signed by John Smith, President, XYZ, Inc., the Office will not question whether the proper party is listed as applicant.
If an attorney signs a verification on behalf of an applicant, the Office will not require a power of attorney or other documentation stating that the attorney is authorized to sign.
This policy applies to both individual applicants and juristic applicants.
The broad definition of a "person properly authorized to sign on behalf of an applicant" in 37 C.F.R. 2.33(a) applies only to verifications of facts by the applicant and designations of domestic representatives. It does not apply to powers of attorney, revocations of powers of attorney, responses to Office actions, or consent agreements.
A non-attorney who is authorized to verify facts on behalf of an applicant under 37 C.F.R. 2.33(a) is not necessarily entitled to sign responses to Office actions, or to authorize examiner's amendments and priority actions. Authorizing an amendment to an application, or submitting legal arguments in response to an examining attorney's requirement or refusal of registration, constitutes representation of the applicant in a trademark matter. Under 5 U.S.C. §500(d) and 37 C.F.R. 10.14(e), non-attorneys may not represent a party in a trademark proceeding before the USPTO. See TMEP §§712 et seq. regarding signature of responses to Office actions.In applications under §66(a) of the Act, the verified statement is part of the international registration on file at the IB. 37 C.F.R. 2.33(e). The IB will have established that the international registration includes a properly signed declaration before it sends the request for extension of protection to the USPTO. The examining attorney should not issue any inquiry regarding the authority of the signatory to verify the application. If the applicant needs to file a request for correction of the declaration, the request should be filed with the IB. However, if the applicant voluntarily files a substitute declaration with the USPTO, it will be examined according to the same standards used for examining any other declaration.