305.02 Certificate of Mailing Procedure
37 C.F.R. §2.197 Certificate of mailing or transmission.
- (a) Except in the cases enumerated in paragraph (a)(2) of this section, correspondence required to be filed in the Office within a set period of time will be considered as being timely filed if the procedure described in this section is followed. The actual date of receipt will be used for all other purposes.
- (1) Correspondence will be considered as being timely filed if:
- (i) The correspondence is mailed or transmitted prior to expiration of the set period of time by being:
- (A) Addressed as set out in §2.190 and deposited with the U.S. Postal Service with sufficient postage as first class mail; or
- (B) Transmitted by facsimile to the Office in accordance with §2.195(c); and
- (ii) The correspondence includes a certificate for each piece of correspondence stating the date of deposit or transmission. The person signing the certificate should have a reasonable basis to expect that the correspondence would be mailed or transmitted on or before the date indicated.
- (2) The procedure described in paragraph (a)(1) of this section does not apply to:
- (i) Applications for the registration of marks under 15 U.S.C. 1051 or 1126; and
- (ii) Madrid-related correspondence filed under §7.11, §7.21, §7.14, §7.23, §7.24 or §7.31.
- (b) In the event that correspondence is considered timely filed by being mailed or transmitted in accordance with paragraph (a) of this section, but not received in the Office, and an application is abandoned, a registration is cancelled or expired, or a proceeding is dismissed, terminated, or decided with prejudice, the correspondence will be considered timely if the party who forwarded such correspondence:
- (1) Informs the Office of the previous mailing or transmission of the correspondence within two months after becoming aware that the Office has no evidence of receipt of the correspondence;
- (2) Supplies an additional copy of the previously mailed or transmitted correspondence and certificate; and
- (3) Includes a statement that attests on a personal knowledge basis or to the satisfaction of the Director to the previous timely mailing or transmission. If the correspondence was sent by facsimile transmission, a copy of the sending unit’s report confirming transmission may be used to support this statement.
- (c) The Office may require additional evidence to determine whether the correspondence was timely filed.
In 37 C.F.R. §2.197, there is a "certificate of mailing or transmission" procedure to avoid lateness due to mail delay for certain trademark correspondence. See TMEP §305.02(a) regarding trademark correspondence excluded from the certificate of mailing or transmission procedure. Under the certificate of mailing or transmission procedure, correspondence is considered to be timely even if received after the due date, if the correspondence was: (1) deposited with the United States Postal Service as first-class mail or transmitted to the USPTO by facsimile transmission before the expiration of the filing period; and (2) accompanied by a certificate attesting to the date of deposit or transmission. 37 C.F.R. §2.197(a).
Filers must retain a copy of the correspondence, including the signed and dated certificate. See In re Sasson Licensing Corp., 35 USPQ2d 1510, 1512 (Comm’r Pats. 1995).