1109.16(e) Applicant’s Recourse After Refusal of Registration
If the applicant unintentionally fails to meet the minimum requirements for filing a statement of use within the time permitted, as set forth in 37 C.F.R. §2.88(e) (see TMEP §1109.01), the applicant may file a petition to revive under 37 C.F.R. §2.66. However, if the applicant met the minimum filing requirements of 37 C.F.R. §2.88(e), but the examining attorney refuses registration on the ground that the applicant failed to satisfy the statutory requirements for a complete statement of use on or before the statutory deadline (e.g., because the specimen is unacceptable or the dates of use are subsequent to the deadline for filing the statement of use), the applicant cannot overcome the refusal by filing a petition to revive under 37 C.F.R. §2.66. TMEP §1714.01(f)(ii)(B). The applicant’s only recourse is to appeal the examining attorney’s refusal of registration to the Trademark Trial and Appeal Board.
See 37 C.F.R. §2.88(b) and TMEP §1109.16(a) regarding the statutory requirements that must be met within the statutory period for filing the statement of use (i.e., within six months of the issuance date of the notice of allowance or before the expiration of an extension of time for filing a statement of use).