TMEP 718.02: Failure by Applicant to Take Required Action During Statutory Period

This is the October 2015 Edition of the TMEP

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718.02    Failure by Applicant to Take Required Action During Statutory Period

15 U.S.C. §1062(b)  

If the applicant is found not entitled to registration, the examiner shall advise the applicant thereof and of the reason therefor. The applicant shall have a period of six months in which to reply or amend his application, which shall then be reexamined. This procedure may be repeated until (1) the examiner finally refuses registration of the mark or (2) the applicant fails for a period of six months to reply or amend or appeal, whereupon the application shall be deemed to have been abandoned, unless it can be shown to the satisfaction of the Director that the delay in responding was unintentional, whereupon such time may be extended.

Under 15 U.S.C. §1062(b) and 37 C.F.R. §2.65(a), an application becomes abandoned if the applicant fails to respond, or fails to respond completely, within the six-month statutory response period. See TMEP §§718.03–718.03(b) regarding incomplete responses. When an applicant is granted additional time to perfect its response under 37 C.F.R. §2.65(a)(2) (TMEP §718.03(b)), but fails to respond or responds late, the date of abandonment is not affected. It remains the day after the date on which the six-month response period ends, since the grant of additional time to perfect a response does not extend the statutory six-month response period.

The examining attorney has no authority to accept a late response. If an applicant files a late response, the examining attorney must immediately send a notice to the applicant stating that the response was untimely; that the application is abandoned; and that the applicant may file a petition to revive under 37 C.F.R. §2.66 if the failure to timely respond was unintentional. See TMEP §§1714–1714.01(g) regarding petitions to revive.

See TMEP §718.02(a) regarding partial abandonment.