TMEP 1715.03(a): Standard of Review for Letters of Protest Filed on the Date of Publication or After Publication

This is the October 2015 Edition of the TMEP

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1715.03(a)    Standard of Review for Letters of Protest Filed on the Date of Publication or After Publication

When a letter of protest is filed more than 30 days after the date of publication, the letter of protest will generally be denied as untimely. See TMEP §1715.03(b).

When a letter of protest is filed on the date of publication or within 30 days after the date of publication, the letter of protest will be accepted only where publication of the mark constituted clear error, because the evidence included with the letter of protest establishes a prima facie case for refusal of registration. In re BPJ Enter's. Ltd., 7 USPQ2d 1375, 1379 (Comm’r Pats. 1988). If evidence is not included, the letter of protest will be denied. The USPTO also denies letters of protest that merely present adversarial arguments that registration should be refused. See TMEP §706.01 regarding clear error and TMEP §1715.04 regarding the nature of relevant evidence.

Letters of protest regarding applications that will issue on the Supplemental Register must be submitted as soon as possible after the filing of the application. If the subject application enters the phase where it cannot be withdrawn from issue while consideration of the letter of protest is pending, the protest will be dismissed as untimely. The Office cannot consider a letter of protest after registration.