TMEP 1715.03(d): Action by Examining Attorney After Publication

October 2017 Edition of the TMEP

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1715.03(d)    Action by Examining Attorney After Publication

If the USPTO accepts a letter of protest filed on the date of publication or after publication, the examining attorney must issue the refusal or requirement, except in unusual circumstances.  The examining attorney must inform the applicant that a letter of protest was accepted.  If the notice of allowance was cancelled, the examining attorney must so inform the applicant.  Before issuing the Office action with the refusal or requirement, the examining attorney must have the action reviewed by his or her managing attorney.

However, the acceptance of the letter of protest is not a final determination by the USPTO that registration must be refused.  In unusual circumstances, the examining attorney may discover additional evidence that would justify approval of the application for registration after acceptance of a letter of protest, or the applicant may overcome the refusal or satisfy the requirement.  If a letter of protest is accepted after publication and the examining attorney later determines that the mark should be approved for issuance of a registration or notice of allowance, the examining attorney must obtain permission from the Administrator for Trademark Policy and Procedure ("Administrator") before approving the application for issue.  After conferring with the Administrator, an appropriate Note to the File must be entered in the record.