TMEP 1613.06(c): Processing Affidavit or Declaration Filed with Insufficient Fees

This is the October 2015 Edition of the TMEP

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1613.06(c)    Processing Affidavit or Declaration Filed with Insufficient Fees

An affidavit or declaration that does not include a fee, or does not include sufficient fees for all the classes to which the affidavit or declaration pertains (and the grace period surcharge, where applicable), is deficient. Fee deficiencies may be cured before expiration of the deadlines set forth in §71 of the Act, 15 U.S.C. §1141k, without payment of a deficiency surcharge, or after expiration of the deadlines set forth in §71 of the Act with the deficiency surcharge required by §71(c) of the Act. See TMEP §§1613.17 et seq. for information about the procedures, deadlines, and surcharge for correcting deficiencies.

If the affidavit or declaration was filed without sufficient fee(s), but the affidavit or declaration included an authorization to charge deficient fees to a USPTO deposit account (37 C.F.R. §2.208), the required fee(s) (and grace period surcharge, where applicable) will be charged to the deposit account. If the deposit account authorization was included with the affidavit or declaration as filed, and the deposit account had sufficient funds to cover the fee(s) in question, there is no fee deficiency and no deficiency surcharge is required.

An authorization to charge fees to a deposit account with insufficient funds to cover the fee is regarded as a deficiency.

If a check submitted as payment of a filing fee for an affidavit or declaration of use or excusable nonuse is returned unpaid, or an electronic funds transfer (“EFT”) or credit card payment is refused or charged back by a financial institution, this is regarded as a deficiency. In addition to the deficiency surcharge (where applicable), there is a fee for processing the payment that was refused. 37 C.F.R. §2.6(b)(12). See TMEP §405.06 for additional information.

If at least one fee is submitted for a multiple-class registration, but the fee is insufficient to cover all the classes, and the class(es) to which the fee(s) should be applied are not specified, the Post Registration staff will issue an Office action requiring either (1) submission of the additional fee(s) or (2) specification of the class(es) to which the initial fee(s) should be applied. 37 C.F.R. §7.37(d)(3). If the holder does not respond within the time period set out in the Office action by submitting the additional fee(s) or specifying the class(es) to which the original fee(s) should be applied, the USPTO will presume that the fee(s) cover the classes in ascending order, beginning with the lowest-numbered class and will delete any unpaid class(es). Id. See TMEP §1608 regarding surrender of the registration as to class(es) that are omitted from a §71 affidavit or declaration.