1715.02(a) Standard of Review for Letter of Protest Filed Before Publication
The Deputy Commissioner will accept a letter of protest filed before publication in all cases where it is determined that the evidence is relevant and supports any reasonable ground for refusal appropriate in ex parte examination. The letter of protest will be reviewed and decided upon even if the examining attorney has not yet taken a first action in the application that is the subject of the letter of protest. Upon acceptance of a letter of protest, the Deputy Commissioner will forward the relevant evidence (but not the letter of protest itself) to the examining attorney. Letters of protest filed before publication will be denied if they merely present purely adversarial arguments, or are otherwise inappropriate.
A letter of protest filed before publication but reviewed by the Deputy Commissioner after publication will be reviewed under the pre-publication standard. See TMEP §1715.02(b).
A letter of protest filed before publication will be dismissed as moot when the issue raised has already been considered by the examining attorney unless: (1) the evidence provided by the protestor is significant additional evidence not currently of record in the application; or (2) the examining attorney clearly erred in his or her consideration of the issue and such error would result in the issuance of a registration in violation of the Trademark Act or applicable rules. See TMEP §706.01 regarding clear error.