306.05 Certificate of Transmission Procedure
37 C.F.R. §2.197
Certificate of mailing or transmission.
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.
Correspondence will be considered as being timely
The correspondence is mailed or transmitted prior
to expiration of the set period of time by being:
Addressed as set out in §2.190 and deposited with
the U.S. Postal Service with sufficient postage as first class mail; or
Transmitted by facsimile to the Office in
accordance with §2.195(c); and
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
The procedure described in paragraph (a)(1) of
this section does not apply to:
Applications for the registration of marks under
15 U.S.C. 1051 or 1126; and
Madrid-related correspondence filed under §7.11,
§7.21, §7.14, §7.23, §7.24 or §7.31.
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:
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;
Supplies an additional copy of the previously
mailed or transmitted correspondence and certificate; and
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.
The Office may require additional evidence to
determine whether the correspondence was timely filed.
Trademark Rule 2.197, 37 C.F.R. §2.197, provides a certificate of transmission procedure to avoid lateness when correspondence is faxed within the response period but is received in the USPTO after expiration of the response period, or not received, or lost within the USPTO. The certificate of transmission procedure may be used for any correspondence that may be filed by fax. See TMEP §306.01 regarding documents that may not be filed by fax.
Under the certificate of transmission procedure, certain correspondence will be considered to be timely filed even if received after the end of the filing period, if the correspondence is transmitted by fax to the USPTO before the expiration of the filing period and accompanied by a certificate attesting to the date of transmission. The person signing the certificate certifies the expectation that the transmission would be initiated before midnight, local time, on the date specified.
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).
See TMEP §306.05(d) regarding the procedure for establishing the timely filing of correspondence that was faxed to the USPTO with a certificate of transmission under 37 C.F.R. §2.197, but was lost or misplaced.