TMEP 804.04: Persons Authorized to Sign Verification or Declaration
October 2017 Edition of the TMEP
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804.04 Persons Authorized to Sign Verification or Declaration
37 C.F.R. §2.2(n)
The term verified statement, and the terms verify, verified, or verification as used in this part refers to a statement that is sworn to, made under oath or in an affidavit, or supported by a declaration under § 2.20 or 28 U.S.C. 1746, and signed in accordance with the requirements of § 2.193.
37 C.F.R. §2.193(e) Proper person to sign.
Documents filed in connection with a trademark application or registration must be signed by a proper person. Unless otherwise specified by law, the following requirements apply:
- (1) Verified statement of facts. A verified statement in support of an application for registration, amendment to an application for registration, allegation of use under §2.76 or §2.88, request for extension of time to file a statement of use under §2.89, or an affidavit under section 8, 12(c), 15, or 71 of the Act must satisfy the requirements of §2.2(n), and be signed by the owner or a person properly authorized to sign on behalf of the owner. A person who is properly authorized to verify facts on behalf of an owner is:
- (i) A person with legal authority to bind the owner (e.g., a corporate officer or general partner of a partnership);
- (ii) A person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the owner; or
- (iii) An attorney as defined in §11.1 of this chapter who has an actual written or verbal power of attorney or an implied power of attorney from the owner.
The Trademark Act does not specify the appropriate person to verify facts on behalf of an applicant. The definition of a "person properly authorized to sign on behalf of the [applicant]" is set forth in 37 C.F.R. §2.193(e)(1). This definition applies to applications for registration, amendments to allege use, statements of use, requests for extensions of time to file statements of use, affidavits of continued use or excusable nonuse under 15 U.S.C. §1058, affidavits of incontestability under 15 U.S.C. §1065, and combined filings under 15 U.S.C. §§1058 and 1059. 37 C.F.R. §§2.2(n), 2.33(a), 2.76(b)(1), 2.88(b)(1), 2.89(a)(3), (b)(3), 2.161(b), 2.167(a). It also applies to declarations supporting amendments to dates of use, use of substitute specimens, claims of acquired distinctiveness under 15 U.S.C. §1052(f), amendments changing the basis for filing, and requests for amendment or correction of registrations under 15 U.S.C. §1057. 37 C.F.R. §2.193(e)(1).
The USPTO presumes that the verification or declaration is properly signed. Thus, the USPTO does not question the authority of the person who signs a verification unless the record or other evidence calls into question the signatory’s authority to sign. In view of the broad definition of a "person properly authorized to sign on behalf of the [applicant]" in 37 C.F.R. §2.193(e)(1), the fact that an application is signed by someone whose title refers to a different entity is not considered an inconsistency that warrants an inquiry as to whether the verification was properly signed.
Example: If an application is filed by "ABC Company, Inc.," and the verification is signed by an officer of "XYZ Company, Inc.," the USPTO will presume that XYZ Company, Inc. is a related company and that the signatory is properly authorized to sign on behalf of ABC Company, Inc.
The signatory should set forth his or her name and title, or state the relationship between the applicant and the person who signed the verification.
If the person signing the verification is identified as a different person than the individual named as the applicant, or as representing a different legal entity than the juristic applicant, the USPTO generally will not question whether the proper party is listed as the applicant.
Example: If the applicant is identified as Mary Smith, an individual citizen of the U.S., and the application is signed by John Smith, the USPTO will not question whether the proper party is listed as applicant.
Example: If the applicant is John Smith, an individual citizen of the U.S., and the application is signed by John Smith, President, XYZ, Inc., the USPTO will not question whether the proper party is listed as applicant.
If a qualified practitioner signs a verification on behalf of an applicant, the USPTO will not require a power of attorney or other documentation stating that the practitioner is authorized to sign.
This policy applies to both individual applicants and juristic applicants.
The broad definition of a "person properly authorized to sign on behalf of the [applicant]" in 37 C.F.R. §2.193(e)(1) applies only to a verified statement of facts by the applicant. It does notapply to powers of attorney, revocations of powers of attorney, responses to Office actions, requests for express abandonment, or changes to the correspondence address. 37 C.F.R. §§2.193(e)(2), (e)(3), (e)(9).
A non-attorney who is authorized to verify facts on behalf of an applicant under 37 C.F.R. §2.193(e)(1) is not necessarily entitled to sign responses to Office actions, or to authorize examiner’s amendments and priority actions. Preparing a document, authorizing an amendment to an application, and submitting legal arguments in response to an examining attorney’s requirement or refusal of registration all constitute examples of representation of the applicant in a trademark matter. See37 C.F.R. §11.5(b)(2). Under 5 U.S.C. §500(d) and 37 C.F.R. §11.14(e), non-attorneys may not represent a party in a trademark proceeding before the USPTO. See TMEP §§611.03(b), 611.06, and 712–712.03 regarding signatures on responses to Office actions.
The signatory must personally sign his or her name. 37 C.F.R. §§2.193(a)(1), (c)(1). It is unacceptable for a person to sign another person’s name to a verification pursuant to a general power of attorney. See In re Cowan, 18 USPQ2d 1407, 1409 (Comm’r Pats. 1990). In a TEAS submission, the person whose name is affixed to the verification must manually enter the elements of the electronic signature. 37 C.F.R. §2.193(c)(1). The rules do not provide authority for an attorney to sign another person's declaration. In re Dermahose, 82 USPQ2d 1793, 1796 (TTAB 2007).
The name of the person who signs a document submitted in connection with an application must be set forth in printed or typed form immediately below or adjacent to the signature, or identified elsewhere in the filing (e.g., in a cover letter or other document that accompanies the filing). 37 C.F.R. §2.193(d). If the signatory’s name is not set forth in a document, the USPTO may require that it be stated for the record. This information can be entered through a Note to the File.
See TMEP §804.05 regarding verification of §66(a) applications.