TMEP 804.03: Time Between Execution and Filing of Documents - §1 or §44 Application

This is the October 2015 Edition of the TMEP

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804.03    Time Between Execution and Filing of Documents - §1 or §44 Application

Documents Must Be Filed Within a Reasonable Time After Execution

All applications and documents must be filed within a reasonable time after their execution. Under 37 C.F.R. §2.33(c), if the verified statement supporting an application for registration is not filed within a reasonable time after it is signed, the USPTO will require the applicant to submit a substitute verification or declaration under 37 C.F.R. §2.20 attesting that the mark was in use in commerce as of the application filing date, or that the applicant had a bona fide intention to use the mark in commerce as of the application filing date. Re-execution is also required where an allegation of use (i.e., either an amendment to allege use under 15 U.S.C. §1051(c) or a statement of use under 15 U.S.C. §1051(d)) or request for extension of time to file a statement of use is not filed within a reasonable time after the date of execution. 37 C.F.R. §§2.76(g), 2.88(g), 2.89(h); TMEP§§1104.10(b)(ii), 1108.02(b), 1109.11(c).

The USPTO considers one year between execution and filing as reasonable for all applications and all documents. The USPTO will not require a new declaration if the document is filed within one year of execution. If an application, allegation of use, or request for extension of time to file a statement of use is filed more than one year after its execution, the examining attorney will require that the applicant submit re-executed documents, or a statement, verified or supported by a declaration under 37 C.F.R. §2.20. See 37 C.F.R. §§2.33(c), 2.76(g), 2.88(g), 2.89(h); TMEP §§1104.10(b)(ii), 1108.02(b), 1109.11(c).

Documents May Not Be Filed Before They Are Executed

If an applicant files an application that is signed and lists a date of execution that is subsequent to the application filing date, the examining attorney will inquire as to the actual date on which the application was signed. If it is not otherwise necessary to issue an Office action, the examining attorney may attempt to contact the applicant by phone or e-mail to ascertain the date of signature, which may then be entered by examiner’s amendment. If the examining attorney is unable to reach the applicant, the examining attorney must issue an Office action requiring the applicant to specify the date of signing.

When an application is executed in a foreign country located across the International Date Line, the fact that an application shows a date of execution as of the day after the application filing date is not inconsistent with its having been executed before filing. No inquiry is required in this limited situation.