TMEP 1604.06(b): Grace Period Surcharge and Deficiency Surcharge

October 2017 Edition of the TMEP

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1604.06(b)    Grace Period Surcharge and Deficiency Surcharge

If the affidavit or declaration is filed during the grace period under §8(a)(3) of the Act, 15 U.S.C. §1058(a)(3), it must include the grace period surcharge per class required by 37 C.F.R. §2.6.

Section 8(c) of the Trademark Act, 15 U.S.C. §1058(c), requires a "deficiency surcharge" for correcting deficiencies in the affidavit or declaration after expiration of the deadlines specified in §8.  See TMEP §§1604.17 et seq. regarding the deadlines and surcharge for correcting deficiencies.

Only a single deficiency surcharge is required for correcting one or more deficiencies in a multiple-class registration.  Similarly, only a single deficiency surcharge is required to correct several deficiencies within one §8 affidavit or declaration, or one combined filing under §§8 and 9.  See TMEP §1604.19 regarding combined filings under §§8 and 9.

The grace period surcharge applies only where no filing was made during the sixth year after the date of registration (or date of publication under §12(c) of the Act), or within the year before the end of any ten-year period after the date of registration.  An owner who files within these periods, but corrects a deficiency after these periods have expired, will be subject to the deficiency surcharge only.  On the other hand, someone who files during the grace period and cures deficiencies after expiration of the grace period will be subject to both the grace period surcharge (for the ability to file the affidavit during the grace period) and the deficiency surcharge (for the ability to correct a deficiency after the end of the grace period). H.R. Rep. No. 105-194, 105th Congress, 1st Sess. 17 (1997).