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VA 22313–1451, attention Catherine lower than expected application filings This notice is issued under the as a result of the COVID–19 outbreak. authority of 46 U.S.C. 70003 and 5 Cain; by hand delivery to the Trademark The USPTO is also mindful of the U.S.C. 552. Assistance Center, Concourse Level, current difficulties many USPTO users James Madison Building-East Wing, 600 Dated: June 10, 2020. are experiencing as a result of the Dulany Street, Alexandria, Virginia R.V. Timme, pandemic. The USPTO has undertaken 22314, attention Catherine Cain; or via Rear Admiral, U.S. Coast Guard, Assistant many efforts to provide various types of the Federal eRulemaking Portal. See the Commandant for Prevention Policy. relief, including deadline extensions Federal eRulemaking Portal website and fee postponements. Ultimately, the FR Doc. 2020–12910 Filed 6–18–20; 8:45 am for goal of the USPTO is to ensure not only additional instructions on providing BILLING CODE 9110–04–P that businesses and entrepreneurs can comments via the portal. All comments weather this storm, but that they can hit submitted directly to the USPTO or DEPARTMENT OF COMMERCE the ground running once it passes. provided on the Federal eRulemaking The USPTO anticipates that the Portal should include the docket Patent and Trademark Office earliest any proposed trademark fee number (PTO–T–2019–0027). changes could take effect is October Although comments may be 37 CFR Parts 2 and 7 2020. Before a final rule is issued, the submitted by postal mail, the USPTO USPTO will consider the state of the prefers to receive comments [Docket No. PTO–T–2019–0027] U.S. economy, the operational needs of electronically because the Office may RIN 0651–AD42 the agency, and public comments more easily share such comments with submitted pursuant to this NPRM. The the public. The USPTO prefers that Trademark Fee Adjustment USPTO will make adjustments as comments submitted electronically be necessary to the substance and timing of : United States Patent and in plain text, but they also may be AGENCY any final rule based on all of these Trademark Office, Department of submitted in portable document format considerations. Commerce. (PDF) or a word processing file format As part of the multi-year fee-setting (DOC or DOCX). Comments not : Notice of proposed rulemaking. ACTION process, the Trademark Public Advisory submitted electronically should be Committee (TPAC) held a public : The United States Patent and submitted on paper in a format that SUMMARY hearing at the USPTO on September 23, Trademark Office (Office or USPTO) facilitates convenient digital scanning 2019. The Office considered and proposes to set or adjust certain into PDF. analyzed all comments, advice, and trademark fees, as authorized by the The comments will be available for recommendations received from the Leahy-Smith America Invents Act public inspection on the USPTO’s TPAC before publishing this NPRM. The (AIA), as amended by the Study of website at http://www.uspto.gov, on the USPTO is now moving to the next step Underrepresented Classes Chasing Federal eRulemaking Portal, and at the in the process. This NPRM proposes Engineering and Science Success Act of Office of the Commissioner for changes to fees and also proposes new 2018 (SUCCESS Act). The proposed fees Trademarks, Madison East, Tenth Floor, fees in order to solicit public comment. are intended to recover the prospective 600 Dulany Street, Alexandria, Virginia Purpose: The USPTO protects aggregate costs of future strategic and 22314. Because comments will be made consumers and provides benefits to operational trademark and Trademark available for public inspection, businesses by effectively and efficiently Trial and Appeal Board (TTAB or information that is not desired to be carrying out the trademark laws of the Board) goals (based on workload made public, such as an address or United States. As a fee funded agency, projections included in the USPTO phone number, should not be included. appropriate fees are critically important fiscal year (FY) 2021 Congressional : for the USPTO to maintain the quality FOR FURTHER INFORMATION CONTACTJustification), including associated Catherine Cain, Office of the Deputy and timeliness of examination and other administrative costs. The proposed fees Commissioner for Trademark services, and to stabilize and modernize will further USPTO strategic objectives Examination Policy, at 571–272–8946, aging information technology (IT) by: Better aligning fees with costs, or by email at TMPolicy@uspto.gov. infrastructure. The fee schedule protecting the integrity of the trademark : The proposed in this rulemaking will SUPPLEMENTARY INFORMATIONregister, improving the efficiency of USPTO conducted a fee assessment in recover the USPTO’s aggregate agency processes, and ensuring January 2019 that formed the basis for estimated future costs and ensure the financial sustainability to facilitate this regulatory process to propose USPTO can achieve strategic and effective trademark operations. Before a adjusting and setting new trademark operational goals, such as effectively final rule is issued, the USPTO will user fees. While trademark-related costs using resources to maintain low consider the state of the U.S. economy, of operations have risen, trademark fees trademark pendency and high quality, the operational needs of the agency, and have not changed since January 2017. fostering business effectiveness public comments submitted pursuant to The revenue and workload assumptions (ensuring quality results for employees this rulemaking. The USPTO will make in this notice of proposed rulemaking and managers), stabilizing and adjustments as necessary to the (NPRM) are based on the assumptions modernizing trademark IT systems, substance and timing of any final rule continuing programs for stakeholder based on all of these considerations. Justification. However, projections of and public outreach, enhancing : Written comments must be aggregate revenues and costs are based operations of the TTAB, and ensuring DATESreceived on or before August 3, 2020. on point-in-time estimates, and the financial sustainability to facilitate : The USPTO prefers that circumstances surrounding these effective trademark operations. ADDRESSES Section 10 of the AIA authorizes the comments be submitted electronically assumptions can change quickly. Notably, since the FY 2021 Director of the USPTO (Director) to set via email to TMFRNotices@uspto.gov. Written comments may also be Congressional Justification was or adjust by rule any fee established, authorized, or charged under the submitted by mail to Commissioner for published, fee collections have been Trademark Act of 1946, 15 U.S.C. 1051 Trademarks, P.O. Box 1451, Alexandria, lower than anticipated, in part due to

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an abandoned application under § 2.66. After careful consideration of the et seq., as amended (the Trademark Act Currently, the fees for these petitions are comments and recommendations or the Act) for any services performed $200 if filed on paper and $100 if filed provided in the TPAC report and in by, or materials furnished by, the Office. through TEAS. The USPTO proposes to testimony by users at the public hearing, See section 10 of the AIA, Public Law and keeping in mind the fee setting set the fee for petitions under §§ 2.146 112–29, 125 Stat. 284, 316–17, as goals of this proposed rule, the USPTO and 2.147 at $350 if filed on paper and amended by the SUCCESS Act, Public has made various changes to the initial $250 if filed through TEAS. The fees for Law 115–273, 132 Stat. 4158. Section 10 fee proposal, including the withdrawal a petition to revive under § 2.66 are of the AIA prescribes that trademark of proposed fees for filing a motion for proposed to be set at $250 if filed on fees may be set or adjusted only to summary judgment and for filing a paper and $150 if filed through TEAS. recover the aggregate estimated costs to request for suspension and remand and These proposed fees take into account the USPTO for processing, activities, the proposed increase in the fee for the different processing costs of these services, and materials relating to filing an affidavit under section 15 of filings. trademarks, including administrative New fees are proposed for requests for the Act. Other fees in the preliminary costs to the USPTO with respect to such reconsideration under § 2.63(b)(3) that proposal were retained or modified, as trademark and TTAB operations. are filed more than three months after reflected in this proposed rule and However, this authority includes the the issue date of a final action (at $500 explained in further detail below. The flexibility to set individual fees to for paper filing and $400 for filing USPTO seeks comments on the fee advance key policy objectives. Thus, the through TEAS or the Electronic System proposals, including in relation to the Director may set individual fees at, for Trademark Trials and Appeals current environment. below, or above their respective The USPTO estimates, based on the (ESTTA)). Requests for reconsideration associated costs, while taking into are documents filed after a final action account the aggregate estimated costs to that respond to the outstanding refusals Congressional Justification, that the the USPTO. or requirements (see Trademark Manual additional aggregate revenue derived Section 10 of the AIA also establishes of Examining Procedure (TMEP) from the proposed fee schedule will certain procedural requirements for § 709.05). They include an applicant’s recover the future costs of implementing setting or adjusting fee regulations, request to the TTAB, filed within six strategic and operational goals, including public hearings by, and input including the cost of necessary IT months of the issue date of a final from, the TPAC. See section 10(c) of the stabilization and modernization action, whether filed with or after a AIA, Public Law 112–29, 125 Stat. at activities, with the expectation that the notice of appeal and whether it is 317. Accordingly, on August 28, 2019, proposal will gradually build the denominated as a request for the Director notified the TPAC of the operating reserve to achieve sustainable reconsideration or is captioned as USPTO’s intent to set or adjust funding that will mitigate the risk of something else, such as a request for trademark fees and submitted a immediate unplanned financial remand. It does not include any filing preliminary trademark fee proposal with disruptions. Under this proposal, based with the TTAB after the applicant has supporting materials, available at http:// on the assumptions found in the FY filed its appeal brief (see Trademark 2021 Congressional Justification, the Trial and Appeal Board Manual of Office estimates reaching the optimal Procedure (TBMP) § 1209.04). This new On September 23, 2019, the TPAC six-month trademark operating reserve proposed fee, imposed when the filing held a public hearing in Alexandria, is more than three months after the level in FY 2025. Virginia. Transcripts of this hearing and Summary of major provisions: The issue date of a final action, is designed comments submitted to the TPAC in USPTO proposes to set or adjust to encourage applicants to submit these writing are available for review at http:// trademark fees codified in 37 CFR parts filings earlier in the response period and 2 and 7. Fees are proposed to be to recover costs associated with increased for all application filing types processing all requests for The TPAC subsequently released a (i.e., paper applications, applications reconsideration. report (TPAC report), dated October 31, A new $50 fee is also proposed for filed via the Trademark Electronic 2019, regarding the preliminary filing a letter of protest, along with new Application System (TEAS), and proposed fees. The report recognized regulations that codify letter-of-protest requests for extension of protection that fee adjustments are warranted to procedures. The new proposed fee and under section 66(a) of the Trademark achieve strategic and operational goals procedures are designed to help offset Act, 15 U.S.C. 1141f). The proposed per- and evaluated the various proposed fees class fee increases range from $25 for a processing costs and deter the filing of in view of the USPTO’s stated rationales TEAS Plus application to $150 for a unsupported or irrelevant letters of for setting or adjusting fees for certain paper application. Fee increases of $100 protest, while not discouraging the services and activities, as well as the per class are also proposed for filing filing of relevant, well-supported letters public comments regarding the fee affidavits or declarations of use or of protest. The new regulatory section is proposals. The TPAC report expressed excusable non-use under section 8 or based on existing, longstanding support for an increase in fees that section 71 of the Act (section 8 or procedures for letters of protest, which would support USPTO operations by section 71 affidavits), 15 U.S.C. 1058, are currently set forth in the TMEP, as recovering costs and maintaining a well as the procedures set out in the 1141k. As described in further detail sufficient operating reserve but raised below, these proposed increases address patents rules in 37 CFR 1.290 and 1.291 concerns regarding some of the policy considerations related to and the Manual of Patent Examining proposed fee increases and their ensuring a more accurate register as well Procedure (MPEP) governing third-party potential impact on customers. The submissions concerning pending as reflecting increased processing costs TPAC report offered recommendations to the Office in handling these filings. applications, which serve a function to address these concerns. The report is This proposed rule creates two levels similar to letters of protest. of fees for petitions, one for petitions to The Office proposes a new fee available at http://www.uspto.gov/ the Director under §§ 2.146 and 2.147 structure to encourage registrants to and a lower fee for a petition to revive proactively perform sufficient due

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demonstrating the sensitivity of diligence before filing a section 8 or proceeding, and six new filing fees section 71 affidavit to determine the would be established. The new and trademark filings, and therefore total goods or services for which the adjusted fees are generally designed to revenues, to general economic recover more of the costs of TTAB registered mark is no longer in use and conditions. So far, the current economic procedures, to reduce the extent to delete them from the registration. The downturn has produced similar which they are subsidized by trademark USPTO herein proposes two fee levels estimates of trademark application filing fee collections, and to advance policy for amendments to registrations to declines. However, during ordinary objectives. The USPTO also proposes to delete goods, services, and/or classes. economic times, application filings revise § 2.114(a) to provide that a partial The USPTO proposes a $0 fee if the only generally have increased by an average refund of the filing fee for a petition to amendment made in a request under historical rate of between 7% and 8% cancel may be made in cases involving section 7 of the Act (section 7 request), per year. USPTO anticipates a return to 15 U.S.C. 1057(e), that is filed prior to only a nonuse or abandonment claim, this historical trend as trademark submission of a section 8 or section 71 when default judgment is entered in the applicants return to expected activities. affidavit is the deletion of goods, case, where there was no appearance by To ensure its ability to keep pace with services, and/or classes. As always, no a defendant, and where no filings were demand, the USPTO is in the midst of additional fee would be incurred for made other than the petition to cancel. a multi-year IT systems and Rulemaking goals and strategies: section 8 or section 71 affidavits that infrastructure upgrade, which is critical Consistent with federal fee setting specify fewer than all of the goods or to the future of the U.S. trademark standards, the Office conducted a services listed in the registration when registration system and represents a biennial review of fees, costs, and the affidavit is filed, which results in significant cost to the Office. revenues that began in 2019 and found the deletion of goods or services not The current fee schedule is that fee adjustments are necessary to included in the affidavit from the insufficient to meet future budgetary provide the resources needed to registration. However, if goods, services, requirements to: (1) Meet the expenses improve trademark operations and to and/or classes are deleted in a section that will result from projected filings implement the USPTO 2018–2022 7 request, a response to Office action, or based on expectations for fee revenues; Strategic Plan (Strategic Plan). As a a voluntary amendment after (2) recover the costs necessary to result, the proposed fee adjustments support trademark and TTAB operations outlined in this proposed rule directly section 8 or section 71 affidavit, the and administrative services; (3) make align with the Office’s strategic goals proposed per-class fee of $250 for necessary investments in IT systems, and key objectives as outlined in this submissions filed through TEAS and intellectual property (IP) policy, and section. Consistent with the USPTO’s $350 for submissions permitted to be USPTO programs related to trademark strategic goals and obligations under the filed on paper would be charged. To and TTAB operations; and (4) achieve AIA, the overall objective of this implement the new fee requirement, optimal operating reserve levels to rulemaking is to ensure the fee schedule corresponding new regulations are also ensure financial sustainability. generates sufficient revenue to recover proposed at §§ 2.161(c) and 7.37(c). In Budgetary requirements have increased the prospective aggregate costs of addition, the USPTO proposes to revise by 22% from FY 2019 to FY 2020 to trademark and TTAB strategic the section titles and restructure address unplanned pay raises, improvements and operations, §§ 2.161 and 7.37 to set out the additional review for potential fraud, including the associated administrative requirements for section 8 and section post-registration audits, agency costs. Fees must be set at levels 71 affidavits more clearly. Except for the administrative operations, and projected to cover the cost of future new provision regarding the fee continued investments in IT that require budgetary requirements and maintain an required for deletions made after additional funding beginning in FY operating reserve at a sufficient level. submission and prior to acceptance of 2020. Without the proposed fee Trademark applications in FY 2019 the affidavit, the substantive text of adjustments, based on the assumptions represented filings in a record number §§ 2.161 and 7.37 has not otherwise of over 673,000 classes of goods/ been revised. Justification, budgetary requirements services. However, in the last two Finally, as discussed below, 16 fees would exceed revenues and available related to TTAB filings are established recessions, new application filings operating reserve balances beginning in or adjusted in this proposed rule: 10 declined (2001, by ¥21.0%; 2002, by FY 2022 through FY 2025 (see Table 1). ¥12.7%; and 2009, by ¥12.3%), fees would be increased for initiating a

1—T F O W P F —FY 2021–FY 2025 ABLE RADEMARK INANCIAL UTLOOK ITHOUT ROPOSED EES

Dollars in millions FY 2021 FY 2022 FY 2023 FY 2024 FY 2025

TProjected Fee Collections .................................................... $367 $390 $412 $430 $447

Other Income ....................................................................... 6 6 6 6 6

Total Projected Fee Collections and Other Income ............ 373 396 418 436 453

Budgetary Requirements ..................................................... 419 460 462 478 497

Funding to (+) and from (¥) Operating Reserve ................ ¥46 ¥64 ¥44 ¥42 ¥44

EOY Operating Reserve Balance ........................................ 26 (38) (81) (123) (167)

Over/(Under) $75M Minimum Level .................................... (49) (113) (156) (198) (242)

Over/(Under) Optimal Level ................................................. (184) (268) (312) (362) (415)

Table 2 below shows the available by fiscal year, including the proposed The numbers in the table below can be revenue and operating reserve balances fee rates in the projected fee collections.

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Justification and were developed in late However, since USPTO was projecting pandemic, USPTO still believes that a calendar year 2019, prior to the COVID– insufficient funding even during an fee increase will be necessary to put the 19 outbreak. Under current economic expansion (see Table 1) and Office on a sustainable financial path. circumstances, it is difficult to predict the trademark financial outlook has only what the actual numbers will be. worsened since the onset of the

2—T F —FY 2021–FY 2025 TABLE TRADEMARK FINANCIAL RUTLOOK ONCLUDING IROPOSED PEES

Dollars in millions FY 2021 FY 2022 FY 2023 FY 2024 FY 2025

Projected Fee Collections .................................................... $445 $472 $498 $519 $539

Other Income ....................................................................... 6 6 6 6 6

Total Projected Fee Collections and Other Income ............ 451 478 504 525 545

Budgetary Requirements ..................................................... 419 460 462 478 497

Funding to (+) and from (¥) Operating Reserve ................ 31 18 42 47 48

EOY Operating Reserve Balance ........................................ 103 121 163 211 259

Over/(Under) $75M Minimum Level .................................... 28 46 88 136 184

Over/(Under) Optimal Level ................................................. (107) (109) (68) (28) 10

and customer support. An adequate providing the relevant services. The Additional information on estimated operating reserve also allows the costs can be found in the USPTO FY overall goal is to achieve total cost USPTO to continue serving its users in 2021 Congressional Justification at recovery from fee collections for the event of a short-term lapse in https://www.uspto.gov/about-us/ trademark and TTAB operations, congressional appropriations or a performance-and-planning/budget-and- including associated administrative financial-information, which includes sudden economic downturn. Trademark services. In determining which fees to two revenue estimates, one based on the filings exhibit a strong connection to set or adjust, this proposed rule targets current fee schedule and another based domestic and global economic activity, changes to the category of fees where on this proposed rule (see Appendix IV: responding quickly to economic shocks, the gap between the cost of the service USPTO Fees—Change from FY 2020 PB as experienced in the 2001–2002 and and the current fee rate is the greatest, to FY 2021 PB). 2009 recessions and most recently in and addresses policy objectives. The USPTO, as a fully fee-funded 2020. The operating reserve is the Application filing fees, petition fees, agency, retains an operating reserve to primary tool to mitigate the sudden and TTAB fees do not fully cover the ensure sufficient financial resources are impact of these unforeseen events. costs of processing and examination for available to support and promote public Another fee setting goal of this those services. Instead, these costs are confidence in the U.S. IP system. The rulemaking is to set individual fees to recovered or subsidized from fees paid operating reserve enables the USPTO to further key IP protection policy for intent-to-use and post-registration maintain operations by absorbing and objectives while taking into account the maintenance filings that return more responding to immediate and temporary cost of a particular service. The USPTO than the costs of processing such filings. changes in its economic and operating seeks to enhance trademark protection For example, using FY 2019 earned environments or circumstances, such as for IP rights holders by offering revenue compared to costs or expenses, unexpected economic downturns, application-processing options and application filing fees recovered 65% of reducing the risk for short-term promoting IP protection strategies. expenses, petition (trademark Aligning fees with costs: The first fee financial actions and providing the processing) fees recovered 50% of security for long-term strategic setting policy consideration is to set and expenses, and TTAB fees recovered just investments, such as IT development adjust trademark fees to more closely 31% of expenses (see Table 3). align those fees with the costs of projects that are crucial to operations

3—E . E T P ABLE ARNED EVENUE VS XPENSE BY RADEMARK RODUCT

Earned revenue FY 2019 FY 2019 FY 2019 vs. expense or Trademark products earned revenue expense variance cost recovery (%)

Application Filings ............................................................................ $190,457,284 $291,678,207 ($101,220,923) 65

Intent to Use/Use Fees .................................................................... 49,885,175 17,154,805 32,730,370 291

Trademark Processing Fees ........................................................... 2,619,600 5,212,800 (2,593,200) 50

Maintaining Exclusive Rights ........................................................... 79,942,987 13,991,853 65,951,134 571

Madrid Protocol ................................................................................ 4,294,675 1,006,834 3,287,841 427

Other Trademark Fees .................................................................... 10,571,283 8,902,431 1,668,852 119

Trademark Trial and Appeal Board ................................................. 8,452,900 27,633,083 (19,180,183) 31

Total .......................................................................................... 346,223,905 365,580,013 (19,356,109) ............................

The proposed fee schedule would petition filings by 101%, and for TTAB services (see Table 4). If the proposed increase the percentage of fee revenues filings by 58% overall, thereby fee schedule were implemented, based for application filings by 21%, for increasing the cost recovery for these on the assumptions found in the FY

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2021 Congressional Justification, the average of 21% per year, or $77 million, year planning period as compared to the USPTO projects that trademark fee to $92 million per year over the five- baseline (see Table 5). collections in total would increase by an

4—I , P TABLETNCREASE IN IUMULATIVE CEVENUE ABY RRODUCT

Projected cumulative revenue, FY 2021–2025 Increase Trademark products (%) Current fee rates NPRM fee rates (baseline)

Application Filings ............................................................................................................ $1,078,986,925 $1,300,666,600 21

Maintaining Exclusive Rights ........................................................................................... 517,806,550 659,008,548 27

Intent to Use/Use ............................................................................................................. 292,887,325 292,887,325 0

Madrid .............................................................................................................................. 29,201,550 42,258,078 45

TTAB ................................................................................................................................ 52,602,400 83,164,508 58

Petition ............................................................................................................................. 17,508,400 35,147,450 101

Other Processing Fees .................................................................................................... 58,391,905 58,391,905 0

Total .......................................................................................................................... 2,047,385,055 2,471,524,413 21

5—A R ABLE NNUAL NCREASES IN GGREGATE EVENUE

FY 2021 FY 2022 FY 2023 FY 2024 FY 2025 Average

Aggregate Revenue—Baseline ................ $367,001,856 $390,327,171 $412,360,921 $430,391,196 $447,303,911 $409,477,011

Aggregate Revenue—NPRM ................... $443,946,233 $471,660,715 $497,754,151 $519,026,516 $539,136,798 $494,304,883

$ Increase ................................................ $76,944,377 $81,333,544 $85,393,230 $88,635,320 $91,832,887 $84,827,872

% Increase ............................................... 21.0% 20.8% 20.7% 20.6% 20.5% 20.7%

more efficiently by removing unused Estimated revenues are based on use of that person’s chosen mark. In addition, such persons may incur costs marks and unsupported goods and adjustments made from public services from the register. and burdens unnecessarily if a comments included in this rulemaking. registered mark is not actually in use in Improving the efficiency of USPTO Protecting the integrity of the commerce in the U.S. or is not in use processes: The third fee setting policy trademark register: The second fee in commerce in connection with all the consideration pertains to improving the setting policy consideration is to set or goods/services identified in the efficiency of the trademark and TTAB adjust fees to improve the accuracy of registration. An accurate and reliable processes. To that end, this proposed the trademark register. The accuracy of trademark register helps avoid such rule targets changes to fees that will the trademark register as a reflection of needless costs and burdens. administratively improve application marks that are actually in use in and appeal processing by incentivizing This proposed rule sets and adjusts commerce in the U.S. for the goods/ more complete and timely filings and fees to encourage actions by trademark services identified in the registrations prosecution. For example, TEAS Plus, filers that help facilitate more efficient listed therein serves a critical purpose the lowest-cost TEAS application filing for the public and for all registrants. An processing and the prompt conclusion option, has more stringent initial of application prosecution by assessing accurate register allows the public to application requirements and thus tends fees for requests for reconsideration rely on the register to determine to result in a more complete application, potential trademark rights. By filed more than three months after a which expedites processing, shortens registering trademarks, the USPTO has a final Office action and for second and pendency, minimizes manual subsequent extension requests to file significant role in protecting consumers, processing and the potential for data- appeal briefs. In addition, filings that as well as providing important benefits entry errors, and is thus more efficient to American businesses, by allowing may result in a less accurate register, for both the filer and the USPTO. While including post-registration filings to them to strengthen and safeguard their the per-class fee for TEAS Plus would maintain registrations that may include brands and related investments. The increase by $25 to $250 under this public relies on the register to determine goods or services for which the mark is proposal, the per-class fee for TEAS whether a chosen mark is available for no longer in use, are among those filings Standard, which has less stringent targeted under this objective. The new use or registration. When a person’s initial application requirements, is fee structure for requests for search of the register discloses a proposed to increase by $75 to $350, potentially confusingly similar mark, reconsideration and requests to delete resulting in a difference of $100 in the goods, services, and/or classes from a that person may incur a variety of per-class fees of the respective filing registration would protect the integrity resulting costs and burdens, such as options (double the current difference of of the register and the efficiency of the those associated with investigating the $50), providing an increased financial actual use of the disclosed mark to process by incentivizing both more incentive to choose the TEAS Plus filing timely filings and proactive action by assess any conflict, initiating option. applicants and registrants. The proceedings to cancel the registration or oppose the application of the disclosed increased efficiencies realized through Ensuring financial sustainability to the proposed rule will benefit all mark, engaging in civil litigation to facilitate effective trademark operations: The fourth fee setting policy applicants and registrants by allowing resolve a dispute over the mark, or consideration pertains to ensuring registrations to be granted sooner and changing business plans to avoid the

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requirements under § 2.22(a) for a TEAS decreased renewals, the recompetitions sufficient revenue to recover the Plus application. Thus, if the processing of major contracts, lease renewals, aggregate costs of trademark operations fee is required in a TEAS Plus changing assumptions about in future years. Additional fees are application, the resulting per-class fee Presidentially authorized or necessary to fund the multi-year project congressionally mandated employee pay would equal the per-class fee for a TEAS to upgrade IT systems and raises, etc.) that could change the Standard application. If a decrease in infrastructure, while also maintaining a USPTO’s budgetary outlook. These the processing fee were not enacted, the sufficient operating reserve balance to estimates are refreshed annually in the per-class fee for an application initially ensure sustainable funding that will formulation of the USPTO’s Budget, and filed as TEAS Plus would exceed the fee mitigate the risk of unplanned financial the USPTO continues to gain new data for TEAS Standard, creating a disruptions that could threaten as the pandemic unfolds. As noted disincentive to choose TEAS Plus, operations and planned investments. above, in addition to these dynamics which, as noted above, tends to be more Operating reserves are intended to factors, the budgetary requirements of efficient for both filers and the USPTO. mitigate operational risk caused by a Fees for paper trademark filings: This the USPTO are comprised of substantial lack of financial resources. The USPTO proposed rule maintains the cost fixed costs, which could also influence defines an optimal balance and a differential for all paper filings to better increased fee rates to ensure aggregate minimum acceptable balance for each align fees with costs, with all trademark revenue recovers aggregate costs. operating reserve—the patent operating Individual fee rationale: Based on the processing fees for paper filings set $100 reserve and the trademark operating to $200 higher than the corresponding reserve. The optimal balances set the Congressional Justification, the USPTO electronic filing fees (per class, when goal for building and maintaining the projects the aggregate revenue generated applicable). Overall, it is more costly for operating reserves. The optimal from current and proposed trademark the USPTO to process paper filings than trademark reserve has been determined electronic filings, and that cost is not fees will recover the prospective to be six months of operating or recovered by the current fees for paper aggregate costs of its trademark and budgetary requirements based on a filings. Raising the fees for paper filings TTAB operations and associated review of environmental risk factors and will help offset the higher processing administrative services. However, each financial volatility. Risks related to costs and move the USPTO closer to individual proposed fee is not set at an spending and fee collections are amount equal to the estimated cost of total cost recovery. analyzed, considering the likelihood At present, most filings are submitted performing the activities related to the and consequence of each and its impact electronically. For example, in FY 2019, fee. Instead, as described above, some of to financial stability, in determining the less than 0.02% of initial applications the proposed fees are set to address optimal reserve levels. were filed on paper. Moreover, a final increases in budgetary requirements as An increase in fees will provide a rule published on July 31, 2019 (84 FR well as balance several key policy stable financial foundation to fulfill the 37081), which became effective on factors, and executing these policy USPTO mission and maintain February 15, 2020 (84 FR 69330), factors through the trademark fee performance. The budgetary requires all applicants, registrants, and schedule is consistent with the goals requirements of the USPTO are parties to TTAB proceedings to file and objectives outlined in the Strategic comprised of substantial fixed costs, electronically through TEAS all Plan. Once the cost recovery and key which may require increased fee rates to trademark applications based on section policy objectives are considered, fees ensure revenue sufficient to recover 1 and/or section 44 of the Act, 15 U.S.C. are set at, above, or below individual aggregate costs. The trademark fee 1051, 1126, and all submissions filed cost-recovery levels for the service schedule proposed here, based on the with the USPTO concerning provided. Additional details on the cost applications or registrations, with methodologies used to derive the Congressional Justification, will limited exceptions. Thus, an increase to historical fee unit expenses can be produce sufficient revenue to recover paper filing fees would have no impact found in ‘‘USPTO Fee Setting—Activity the aggregate costs of trademark and on the vast majority of applicants and Based Information and Trademark Fee TTAB operations, including executing registrants who are required to file Unit Expense Methodology’’ at http://USPTO strategic goals, policy documents electronically. objectives, and initiatives in FY 2020 Other trademark processing fees: The and beyond; creating a better and fairer USPTO also proposes to increase certain Trademark application filing fees: cost-recovery system that balances other trademark processing fees to This proposed rule would increase all subsidizing costs to encourage broader further key policy goals. This proposed application filing fees by varying usage of IP rights-protection rule sets out increases to the fees for amounts. The filing fee for a paper mechanisms and participation by more petitions to the Director as well as trademark application would increase trademark owners; promoting a strong section 8 and section 71 affidavits. In by $150, from $600 per class to $750 per incentive for more efficient filing addition, this proposed rule sets new class. The TEAS Plus application filing behaviors; and protecting the federal fees and procedural regulations for fee would increase by $25, from $225 trademark register as a reliable indicator filing a letter of protest and new fees for per class to $250 per class. The TEAS of marks in use in commerce. The Standard application filing fee would filing a request for reconsideration more projections of aggregate revenues and than three months after a final Office increase by $75, from $275 per class to costs are based on point-in-time $350 per class. The fee for filing an action, and for deleting goods, services, estimates and assumptions that are application under section 66(a) of the and/or classes from a registration after subject to change. There is considerable Act would increase by $100, from the uncertainty in estimating both fee section 8 or section 71 affidavit. equivalent of $400 per class, as paid in collections and budgetary requirements (1) Petitions to the Director in Swiss francs, to the equivalent of $500 trademark matters: The USPTO in ordinary times, and even more so per class, as paid in Swiss francs. Also proposed is a decrease of the proposes to establish two levels of fees now. In addition to the pandemic, a number of other risks could materialize processing fee from $125 to $100 per for petitions. This proposed rule would increase the current fee for filing a (e.g., even lower applications volumes, class for failure to meet the filing

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petition to the Director for petitions section 8 or section 71 affidavits for 500 with the USPTO receiving 2,726 in FY filed under §§ 2.146 or 2.147. It would registrations were reviewed as to actual 2017, 3,480 in FY 2018, and 4,106 in FY also establish a separate fee for petitions use of the marks in connection with the 2019. Thus, letters of protest continue to to revive filed under § 2.66 that would goods and/or services identified in the generate increasing additional expenses, be less than the fee for petitions filed registrations in order to assess the and under the current schedule where under §§ 2.146 or 2.147. The proposed accuracy and integrity of the trademark letters can be filed without any fee, these expenses would likely only fees are intended to facilitate effective register. The findings of the pilot increase in the future. trademark operations. The fee for program demonstrated a need for Many preliminary commenters ongoing measures for additional review electronically filing a petition to the expressed concerns about this proposed of these filings on a permanent basis. Director under §§ 2.146 or 2.147 would fee, noting that letters of protest provide Since codifying the authority to require increase from $100 to $250, and the fee a valuable service to the USPTO and additional information and evidence for filing on paper would increase from should not be discouraged by requiring concerning the use of registered marks $200 to $350. The fee for electronically a fee for submission. The USPTO in connection with section 8 and 71 filing a petition to revive an abandoned recognizes that, in many cases, letters of application under § 2.66 would increase maintenance filings in 2017 (82 FR protest assist the Office in obtaining from $100 to $150, and the fee for filing 6259), the USPTO has conducted evidence to support refusals of on paper would increase from $200 to additional reviews of the actual use of registration, helping to avoid marks that $250. the marks in 8,276 section 8 or section are ineligible for registration being Generally, petitions under § 2.146 71 affidavits through January 1, 2020. In placed on the trademark register. extend the trademark registration and more than 50% of the registrations post-registration processes by Currently, all letters of protest must be undergoing the additional review, the introducing additional processing and reviewed in accordance with the registrations have either been removed examination into the timeline, which procedures set out in TMEP § 1715 to from the register or had goods or may lead to applications and determine whether: (1) The issue raised services deleted, resulting in a more registration maintenance documents is an appropriate subject for a letter of accurate trademark register. The remaining pending for longer periods of protest; (2) the protest was submitted proposed fee increases would support time, potentially blocking others. By before or after publication of the subject the cost of this additional review. increasing fees for these filings, the application; (3) the nature, amount, and (3) Letters of protest in trademark USPTO would discourage misuse of the applications: The USPTO proposes a format of the evidence complies with the requirements set out in the TMEP; process through unnecessary filings that new $50 fee for filing a letter of protest. and (4) the submitted evidence meets delay prosecution of an application or A letter of protest allows a third party the relevant standard for entry in the registration maintenance document. The to bring to the attention of the USPTO evidence bearing on the registrability of record and review by the examining comments provided in the TPAC report a mark in a pending application. The attorney. If the letter of protest is filed received by the USPTO also generally letter-of-protest procedure exists for the before publication of the subject supported the increases to the fees for administrative convenience of the Office petitions to the Director under § 2.146 and is not a substitute for the statutory and a smaller increase for petitions under § 2.66. opposition and cancellation procedures refusal, and the entry of evidence into (2) Section 8 or section 71 affidavits: available to third parties who believe the application record merely serves to Fees from post-registration filings have they would be damaged by registration bring the submitted evidence to the historically been set to recover more of the involved mark. It is intended to attention of the examining attorney, than the costs of processing the filings. aid in examination without causing who determines whether a refusal or The fees are used to offset cost recovery undue delay and without compromising requirement should be raised or for application processing and the integrity and objectivity of the ex ultimately made final. If the letter of examination as well as TTAB parte examination process, which protest is filed on the date of, or within proceedings and appeals. In general, involves only the applicant and the 30 days after, publication of the subject fewer post-registration maintenance application, the evidence must establish Office. For this reason, the protestor is filings are made by pro se and foreign a prima facie case for refusal on the not permitted to submit legal arguments, registrants. Compounding this issue, pro identified ground(s), such that failure to contact the examining attorney assigned se and foreign owners comprise a to the subject application, or participate issue a refusal would likely result in the growing share of new applicants. Based in any Office proceedings relating to the issuance of a registration in violation of on recent pre-pandemic trends, the protest or the application to which it is the Act or regulations under parts 2 or overall percentage of registrations being directed. The limited involvement of the 7 of this section. In FY 2019, the evidence in maintained is decreasing. Therefore, the third party ends with the filing of the approximately 25% of pre-publication USPTO anticipates that it will face a protest. The questions of whether or not letters of protest and 94% of post- continuing decrease in revenue from evidence is relevant to a refusal ground publication letters of protest was not maintenance filings going forward if appropriate in ex parte examination, a forwarded to the examining attorney. adjustments are not made. Increasing refusal should be made, or a registration This suggests that a significant portion fees for section 8 and section 71 will issue are matters for the Office to affidavits is necessary to continue to of filings do not contain relevant determine during the ex parte provide cost-recovery offsets and allow information or evidence, or are examination process that occurs otherwise unnecessary. These filings other fees to remain below their between the applicant and the Office generate additional costs without a individual unit costs. acting on behalf of the public. Increased fees are also proposed for Filing a letter of protest currently corresponding benefit. Seeking to balance the commenters’ these filings in part because of the post- requires no fee, but the Office incurs registration audit program, which was concerns with the need to recover some costs associated with the work of implemented as a result of the 2012 reviewing and processing each letter. costs, the proposed fee of $50 is set at a level high enough to partially offset Post-Registration Proof-of-Use Pilot The filing volume for letters of protest Program. During the pilot program, has steadily increased in recent years, processing costs and deter the filing of

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questions of whether or not evidence is relevance. Therefore, an index is unsupported or irrelevant filings, but relevant to a refusal ground appropriate low enough so as not to discourage the required for all submissions listing the in ex parte examination, a refusal will filing of relevant, well-supported letters documents submitted as evidence and be made, or a registration will issue are of protest. This fee level is also the ground(s) for refusal each item of matters for the Office to determine as consistent with the TPAC evidence supports. In addition, the part of the ex parte examination process recommendations in that it falls within proposed procedures also require that that occurs between the applicant and the $20 to $100 fee range suggested by the submission not total more than 10 the Office acting on behalf of the public. the TPAC report. items of evidence in support of a In connection with this proposed fee, Therefore, the proposed procedures also specified ground of refusal and more the USPTO also proposes a new provide that: (1) The Office’s than 75 total pages of evidence without regulatory section, at 37 CFR 2.149, determination whether to include a detailed and sufficient explanation which sets out the procedures for letters submitted evidence in the record of an that establishes the special of protest. The new regulatory section is application would be final and non- circumstances that necessitate providing based on the existing longstanding petitionable, (2) the limited involvement more than 10 items of evidence per procedures for letters of protest, which of the third party ends with the filing of refusal ground or more than 75 total are currently set forth in the TMEP, with the letter of protest, and (3) the third pages of evidence. This requirement appropriate modifications that more party may not directly contact the encourages the submission of evidence closely align the procedures with those examining attorney assigned to the that is succinct, not duplicative, and for similar third-party submissions and limited to the most relevant evidence. It protests in patent applications under 37 (4) Requests for reconsideration in should be a rare situation in which more trademark applications: The USPTO CFR 1.290 and 1.291 and as set out in than 10 items of evidence or 75 total proposes a new fee for a request for MPEP §§ 1134 and 1901. This action is pages of evidence is necessary to reconsideration filed more than three being undertaken at this time due to the support the proposed legal grounds for months, but within six months, after the rising volume of letters of protest in refusal. However, some examples of issue date of a final action or with a recent years, which has resulted in the situations that might constitute such petition to revive an abandoned need to codify procedures for special circumstances are when: (1) A application. The proposed fee is $400 submission of such protests in the subject application includes multiple for a TEAS submission and $500 for a regulations. classes and the protestor needs to Under the procedures set forth in the paper submission. No fee would be provide evidence of relatedness of the proposed regulatory text at § 2.149, a incurred for requests filed within three goods/services for all classes in the letter of protest must be timely filed months of the issue date of a final application; (2) evidence submitted to through TEAS and must include: (1) action. support a refusal for descriptiveness As noted above, a request for The proposed fee; (2) the serial number consists of fewer than 10 discrete items, reconsideration is a document filed of the pending application that is the but each item comprises multiple pages, within six months of the issue date of subject of the protest; (3) an itemized totaling more than 75 pages; or (3) a a final action that responds to the evidence index that includes protestor raises more than one ground outstanding refusals or requirements. In identification of the documents, or for refusal and the evidence necessary to some cases, it may also be filed with a portions of documents, being submitted support all grounds raised totals more petition to revive an application as evidence and a concise factual than 10 items or 75 pages. abandoned for failure to respond to a statement of the relevant grounds for A letter of protest submitted by a third final action within the six-month refusal of registration appropriate in ex party is not made part of the application response period. In such cases, the parte examination that each identified record to preserve the ex parte nature of request for reconsideration would be item supports; and (4) a clear and examination. If the USPTO determines filed more than six months after the legible copy of the supporting evidence that the submission complies with the issue date of the final action. It also identified in the evidence index. As proposed regulations, only the specified includes an applicant’s request to the noted above, if the letter of protest is grounds for refusal and the provided TTAB, filed within six months of the filed before publication of the subject evidence relevant to the grounds for issue date of a final action, whether refusal would be included in the filed with or after a notice of appeal and application record for consideration by whether it is denominated as a request refusal. If filed on or within 30 days the examining attorney. A third party for reconsideration or is captioned as after publication of the subject filing a letter of protest will not receive something else, such as a request for application, the evidence must establish any communication from the USPTO remand (see TMEP § 709.05 and TBMP a prima facie case for refusal on the relating to the submission other than § 1209.04). In some cases, multiple identified grounds, such that failure to acknowledgement that it has been requests are filed. Examining attorneys issue a refusal or make a requirement received by the Office and notification must review the request(s) for would likely result in issuance of a of whether the submission is found to reconsideration and take appropriate registration in violation of the Act or be compliant or non-compliant. Also, action, which frequently involves regulations under parts 2 or 7 of this the Office will not accept amendments issuing a subsequent Office action that section. to a non-compliant submission that was The letter-of-protest process is discusses any new evidence submitted previously filed or requests to intended to provide an opportunity for with the request. In some reconsider a compliance determination. the protestor to efficiently and circumstances, Office procedure Rather, the third party may submit a effectively provide relevant evidence in requires the examining attorney to issue new letter of protest that is compliant if support of the proposed legal grounds a new refusal, with a new six-month the time period for submitting a letter of for refusing registration of the response deadline. protest has not closed. A protestor does Because requests for reconsideration application identified in the not, by the mere filing of a protest, require additional examination, they submission. It is inappropriate for the generate additional costs for the USPTO. obtain a ‘‘right’’ to argue the protest protestor to ‘‘dump’’ evidence and leave before the Office. As noted above, the In addition, requests for reconsideration it to the Office to determine its possible

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and notices of opposition. The Office lengthen the examination process, specify fewer than all of the goods or services listed in the registration when also proposes to amend § 2.114(a) to thereby increasing overall examination the affidavit is filed, which results in allow the USPTO discretion to refund a pendency, particularly when filed later the deletion of goods or services not portion of the petition fee in cases of in the response period or after the filing included in the affidavit from the default judgment where there is no of a notice of appeal and prior to the registration. However, if goods, services, expiration of six months from the issue and/or classes are deleted in a section date of the final action. The proposed fee is intended to recover costs 7 request, a response to Office action, or to cancel, reflecting reduced work associated with requests for a voluntary amendment filed after needed on the part of the TTAB; reconsideration and encourage consequently, this amount is in excess of that required to offset TTAB costs. applicants to submit these filings earlier section 8 or section 71 affidavit, the The resulting lower net fee for a petition in the response period for the final USPTO proposes a new fee of $250 per to cancel that meets these characteristics action. class, if filed through TEAS, or $350 per The TPAC report expressed concerns also furthers the policy goal of not class, if a paper filing is permitted, for that the proposed fee was too high and discouraging the filing of petitions to deleting goods, services, and/or classes could discourage the filing of requests cancel by petitioners with knowledge from the registration. for reconsideration, which often resolve The proposed no-fee option would be that a registered mark is no longer in issues and avoid the need for an appeal. available to, and the $250 (or $350) per- use, or was never put to use, and The TPAC report therefore suggested class fee would be assessed against, all therefore should be removed from the that the Office consider not charging a registrants. Thus, they are not related to register. The refund would be in the fee for requests filed within three a post-registration proof-of-use audit or amount of $200. Compared to months of the final Office action. The a TTAB finding. The proposals are cancellation proceedings, an opposition USPTO has considered and adopted the intended to improve the accuracy and is less likely to be determined by default suggestion from the TPAC report. integrity of the register by encouraging judgment based on abandonment or (5) Deletion of goods, services, and/or all registrants to proactively perform nonuse, because the applicants involved classes from registrations: The USPTO sufficient due diligence before filing a tend to be actively engaged with the initially proposed fees for each good or section 8 or section 71 affidavit to USPTO through the examination service deleted as a result of a post- determine the goods, services, and/or process up to the opposition, and the registration audit or an adverse TTAB classes for which the registered mark is Office is not proposing to allow for finding of $200 if submitted on paper or no longer in use and delete them from refunds concerning notices of $100 if submitted through TEAS. The the registration. opposition. TTAB fees: The Office proposes to set TPAC report expressed concerns The TPAC report expressed some or adjust 16 TTAB-related fees: 10 fees regarding how the fees would be concern about the preliminary proposed would be increased for initiating a assessed because it could be difficult to increase for filing a notice of ex parte proceeding, and six new filing fees determine what is a separate good or appeal, noting that, for various reasons, would be established. The TTAB would service in some situations, and some many appeals are resolved before an also obtain discretion to grant a refund registrants with extensive goods and appeal brief is filed. Some commenters services could potentially be assessed of a portion of the filing fee for a expressed their belief that the proposed onerous fees to delete specific goods or petition to cancel. increase would negatively impact small (1) Existing fees at the TTAB: In an services within a class. The TPAC report businesses and individuals. In attempt to address better alignment of supported a fee for the deletion of goods consideration of the comments, the fees with the costs of providing TTAB or services as a result of a post- Office herein proposes to increase the services, the initial fee proposal registration audit if the proposed fees filing fees for a notice of appeal to $325 presented to the TPAC included an were charged per each class in which per class if filed on paper and $225 per across-the-board increase in TTAB fees goods or services are deleted. The report class if filed through ESTTA, which is for petitions for cancellation, notices of also supported a no-fee option for a $25 increase (rather than the $200 opposition, and ex parte appeals of $200 voluntarily cancelling goods or services increase to both fees in the preliminary per class. The TPAC report generally from a registration at any time prior to proposal). supported an increase in filing fees for Fee increases are proposed for filing an audit. The TPAC report did not petitions to cancel and notices of requests for an extension of time to file support the proposed new fees opposition on the basis that the an opposition. Under the current following an adverse TTAB finding, proposed increases are justified on a structure, applicants may request: (1) stating that it would be unclear when cost-recovery rationale, noting the high An initial 30-day extension for no fee, the fee would apply and how it would average unit cost for these proceedings. (2) a subsequent 60-day extension for a be implemented. Currently, amendments to The TPAC report and some commenters fee of $100 for electronic filings and registrations may be made by filing a observed that many petitions to cancel $200 for paper filings, and (3) a final 60- section 7 request for amendment or and notices of opposition are decided by day extension for a fee of $200 for correction of a registration for $100, if default judgment. Commenters objecting electronic filings and $300 for paper submitted through TEAS, or $200, if filings. The Office proposes to maintain to the preliminary proposed fee increase filed on paper. After consideration of for petitions to cancel expressed their this tiered structure with an increase of the TPAC response, the USPTO belief that the increase could deter $100 for the first 60-day electronic proposes to set a $0 fee for a section 7 filings based on abandonment or extension and $200 for the final 60-day request that is filed through TEAS prior electronic extension. Paper-filed nonuse, which would impact the to the submission of a section 8 or USPTO’s objective of removing marks extension requests are proposed to section 71 affidavit and consists only of from the trademark register that are no increase by $200 for each filing. The a request to delete specified goods, current and proposed filing fees are per longer being used. In consideration of these observations, services, and/or classes. As noted above, application, not per class. no additional fee would be incurred for the Office proposes an increase of $200 These proposed fees are designed to yield efficiencies by encouraging section 8 or section 71 affidavits that per class for petitions for cancellation

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requested in the vast majority of cases potential opposers to make decisions costs of operations, along with key regarding filing an opposition sooner, policy considerations, such as before the TTAB. They are optional and thus reducing delays to applicants encouraging efficient processing. are most useful when cases involve (2) Fees for filing an appeal brief at whose filings have been made the complex issues, a complex record, or the TTAB: The Office proposes an subject of extensions of time to oppose. highly technical goods and services. The increase in the fee for filing a notice of Additionally, by encouraging earlier proposed fee would help offset the costs appeal of $25 per class, based on decisions to initiate proceedings, the of scheduling and conducting the inflation, and the establishment of new uncertainty experienced by these hearing, as well as the maintenance of fees for filing an appeal brief of $300 per applicants will be ameliorated by equipment for remote participation. class if filed on paper and $200 per class having their applications proceed to Discussion of Proposed Rule Changes if filed through ESTTA. In its initial determination on the merits sooner. proposal submitted to the TPAC, the This should also help to protect the The USPTO proposes to revise Office had proposed raising the current integrity of the trademark register by § 2.6(a)(1)(i) to increase the per-class fee fees for filing a notice of appeal to the encouraging timely decisions and filings for filing an initial application on paper TTAB by $200 per class and also to ensure that the rights of other from $600 to $750. instituting new fees for filing briefs in applicants and the public are not The USPTO proposes to revise a notice of appeal. The TPAC supported adversely affected. § 2.6(a)(1)(ii) to increase the per-class maintaining the current fees for filing a The TPAC report expressed some fee for filing an application under concerns over the proposed increase in notice of appeal and the proposed new section 66(a) of the Act from $400 to these fees, noting that extension fees fees for filing an appeal brief. This $500. were implemented about three years modification addresses the TPAC report The USPTO proposes to revise prior and that raising them may result recommendations to apply the majority § 2.6(a)(1)(iii) to increase the per-class in a higher number of oppositions being of the aggregate increases in appeal fees fee for filing a TEAS Standard filed because the decision is rushed. to the costs incurred when an appeal application from $275 to $350. Some commenters were concerned that brief is filed, which increases the The USPTO proposes to revise the proposed increases would impact likelihood that the appeal will have to § 2.6(a)(1)(iv) to increase the per-class smaller entities and deter parties from be decided on the merits. fee for filing a TEAS Plus application (3) Fees for filing requests for working to settle prior to filing a notice from $225 to $250. extension of time to file an appeal brief of opposition. Given that the USPTO The USPTO proposes to revise at the TTAB: New fees are proposed for also proposes increasing the fee for the § 2.6(a)(1)(v) to decrease the processing second and subsequent requests for notice of opposition, the USPTO fee under § 2.22(c) from $125 to $100 extensions of time to file an appeal believes that the proposed fees for per class. brief. The proposed fees are $200 per extensions of time to oppose should The USPTO proposes to add application if filed on paper and $100 encourage earlier calculated decisions § 2.6(a)(11)(iii) to establish a fee of $0 per application if filed through ESTTA. based on all of the available for filing a section 7 request to amend No fee is proposed for a first request for information, including fees. a registration through TEAS prior to extension of time to file an appeal brief. Furthermore, the tiered fee structure submission of a section 8 or section 71 In its report on the initial proposal, reduces the likelihood of potential affidavit and that consists only of the the TPAC expressed support for the opposers using the extensions merely to deletion of goods, services, and/or proposed new fees. Some commenters delay registration of pending classes. objected to the proposed new fees, applications. The USPTO proposes to revise expressing their belief that minimal Approximately two-thirds of the cost § 2.6(a)(12)(i) and (ii) to increase the USPTO resources are required to of TTAB operations is subsidized per-class fee for filing a section 8 process such requests and that they currently by revenue from other affidavit from $225 to $325 for a paper increase the overall costs to smaller trademark processing fees. The submission and from $125 to $225 for entities. These proposed fees yield proposed increases in these TTAB fees a TEAS submission. efficiencies by encouraging applicants will not recover the full costs of TTAB The USPTO proposes to add to move forward with their appeals, operations but will increase revenues by § 2.6(a)(12)(iii) and (iv) to establish fees resulting in a quicker resolution of the 7% to bring fees closer to the costs in for the deletion of goods, services, and/ appeal, the pendency of which can order to provide better alignment between costs and fees and bring the adversely impact the rights of other acceptance of a section 8 affidavit. The TTAB closer to full cost recovery. In applicants and registrants. proposed § 2.6(a)(12)(iii) and (iv) set the general, the TPAC commenters Implementing a two-tiered fee structure per-class fee at $350 for a paper supported most of the proposed fee minimizes costs to smaller entities, as submission and $250 for a TEAS increases with some modification there is no fee for a first request for submission. because of the recognized costs for extension of time to file the appeal brief. The USPTO proposes to revise (4) Fees for oral hearing at the TTAB: processing and the cost differential. § 2.6(a)(15) to establish separate fees for Finally, these fees will help offset A new fee is proposed for a request for petitions to the Director under §§ 2.146 TTAB processing costs. In FY 2019, the an oral hearing. The proposed fee is or 2.147 and petitions to revive an USPTO received 20,502 requests for $500 per proceeding. abandoned application under § 2.66. In its report on the initial proposal, extensions of time to file a notice of The proposed revisions to § 2.6(a)(15)(i) opposition. It is customary for requests the TPAC expressed support for the and (ii) set the fee for filing a petition proposed new fee, noting that the TTAB that delay processing of records, such as to the Director under §§ 2.146 or 2.147 incurs significant costs in conducting extensions, to incur a fee, which offsets at $350 for a paper submission and $250 costs associated with processing the oral hearings and all users subsidize the for a TEAS submission. The proposed filing, as well as the overall cost of few parties requesting oral hearings. addition of § 2.6(a)(15)(iii) and (iv) set Some commenters opposed the fee due processing appeals and trials. These fees the fee for filing a petition to revive an to the impact on small businesses and are necessary to help attain primary abandoned application under § 2.66 at Office goals of recovering the aggregate individuals. Oral hearings are not

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abandoned application. The USPTO which goods, services, and/or classes $250 for a paper submission and $150 are deleted. proposes to add § 2.6(a)(26)(i) to for a TEAS submission. The USPTO proposes to revise establish a fee of $0 for filing a request Rulemaking Requirements § 2.6(a)(16)(i) and (ii) to increase the for reconsideration within three months A. America Invents Act: This per-class fee for filing a petition to after the issue date of a final action rulemaking proposes to set and adjust cancel from $500 to $700 for a paper through TEAS. The USPTO proposes to fees under section 10(a) of the AIA as submission and from $400 to $600 for add § 2.6(a)(26)(ii) and (iii) to establish amended by the SUCCESS Act. Section an ESTTA submission. a fee of $500 for a paper submission and 10(a) of the AIA authorizes the Director The USPTO proposes to revise $400 for a TEAS or ESTTA submission to set or adjust by rule any trademark § 2.6(a)(17)(i) and (ii) to increase the for a request for reconsideration filed fee established, authorized, or charged per-class fee for filing a notice of more than three months after and within under the Trademark Act for any opposition from $500 to $700 for a six months of the issue date of a final services performed by, or materials paper submission and from $400 to Office action. furnished by, the USPTO (see section 10 $600 for an ESTTA submission. The USPTO proposes to revise The USPTO proposes to revise of the AIA, Pub. L. 112–29, 125 Stat. § 2.114(a) to provide that a partial § 2.6(a)(18) to increase the fee for filing 284, 316–17, as amended by Pub. L. refund of the fee for a petition to cancel, an ex parte appeal and to establish new 115–273, 132 Stat. 4158). Section 10(e) equal to the increase in that fee fees for requests for an extension of time of the AIA sets forth the general otherwise proposed by this rulemaking, to file an appeal brief and for filing a requirements for rulemakings that set or may be made in cases of default brief in an ex parte appeal. The adjust fees under this authority. In judgment where there was no proposed revisions to § 2.6(a)(18)(i) and particular, section 10(e)(1) requires the Director to publish in the Federal (ii) increase the per-class fee for filing Register any proposed fee change under an ex parte appeal from $300 to $325 for to cancel. section 10 and include in such a paper submission and from $200 to The USPTO proposes to add § 2.149, publication the specific rationale and $225 for an ESTTA submission. The which codifies the procedures and purpose for the proposal, including the proposed addition of § 2.6(a)(18)(iii) sets requirements for letters of protest. The USPTO proposes to revise the possible expectations or benefits the per-application fee for filing a first section title and to restructure § 2.161 to resulting from the proposed change. For set out the requirements for section 8 such rulemakings, the AIA requires that an appeal brief at $0. The proposed affidavits or declarations more clearly. the USPTO provide a public comment addition of § 2.6(a)(18)(iv) and (v) sets The USPTO also proposes to add, at period of not less than 45 days. the per-application fee for filing a The TPAC advises the Under revised § 2.161(c), a provision stating second or subsequent request for an Secretary of Commerce for Intellectual that if goods, services, and/or classes are extension of time to file an appeal brief Property and Director of the USPTO on deleted from a registration after at $200 for a paper submission and $100 the management, policies, goals, submission and prior to the acceptance for an ESTTA submission. The proposed performance, budget, and user fees of of a section 8 affidavit or declaration, addition of § 2.6(a)(18)(vi) and (vii) set trademark operations. When adopting the deletion must be accompanied by the per-class fee for filing a brief in an fees under section 10 of the AIA, the the relevant fee under proposed ex parte appeal at $300 for a paper AIA requires the Director to provide the § 2.6(a)(12)(iii) or (iv) for each class from submission and $200 for an ESTTA TPAC with the proposed fees at least 45 which goods, services, and/or classes submission. days prior to publishing them in the are deleted. The USPTO proposes to revise Federal Register. The TPAC then has at The USPTO proposes to revise § 2.6(a)(22)(i) and (ii) to increase the fee least 30 days within which to deliberate, § 7.6(a)(6)(i) and (ii) to increase the per- for filing a request for an extension of consider, and comment on the proposal, class fee for filing a section 71 affidavit time to file a notice of opposition as well as hold a public hearing(s) on from $225 to $325 for a paper pursuant to § 2.102(c)(1)(ii) or (c)(2) submission and from $125 to $225 for the proposed fees. The TPAC must make from $200 to $400 for a paper a written report available to the public a TEAS submission. submission and from $100 to $200 for The USPTO proposes to add of the comments, advice, and an ESTTA submission. § 7.6(a)(6)(iii) and (iv) to establish fees recommendations of the committee The USPTO proposes to revise for the deletion of goods, services, and/ regarding the proposed fees before the § 2.6(a)(23)(i) and (ii) to increase the fee USPTO issues any final fees. The for filing a request for an extension of acceptance of a section 71 affidavit. The USPTO will consider and analyze any time to file a notice of opposition proposed § 7.6(a)(iii) and (iv) set the comments, advice, or recommendations pursuant to § 2.102(c)(3) from $300 to per-class fee at $350 for a paper received from the TPAC before finally $500 for a paper submission and from submission and $250 for a TEAS setting or adjusting fees. $200 to $400 for an ESTTA submission. Consistent with the requirements of submission. The USPTO proposes to add The USPTO proposes to revise the the AIA, on August 28, 2019, the § 2.6(a)(24) to establish a fee for filing a section title and to restructure § 7.37 to Director notified the TPAC of the request for an oral hearing before the set out the requirements for section 71 USPTO’s intent to set or adjust TTAB of $500 per proceeding. affidavits or declarations more clearly. trademark fees and submitted a The USPTO proposes to add The USPTO also proposes to add, at preliminary trademark fee proposal with § 2.6(a)(25) to establish a fee of $50 for revised § 7.37(c), a provision stating that supporting materials. The preliminary the filing of a letter of protest per subject if goods, services, and/or classes are trademark fee proposal and associated deleted from a registration after The USPTO proposes to add materials are available at http://§ 2.6(a)(26) to set out fees for a request section 71 affidavit or declaration, the for reconsideration filed more than three The TPAC held a public hearing in months after a final action and within deletion must be accompanied by the relevant fee under proposed Alexandria, Virginia, on September 23, six months of the issue date of a final

1. Transcripts of this hearing and § 7.6(a)(6)(iii) or (iv) for each class from action or with a petition to revive an

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The USPTO’s five-year estimated comments submitted to the TPAC in 2. Succinct Statement of the Objectives aggregate trademark fee revenue is based writing are available for review at http:// of, and Legal Basis for, the Proposed on the number of trademark Rule applications and other fee-related filings The policy objectives of the proposed it expects to receive for a given fiscal The TPAC subsequently issued a report, rule are to: (1) Better align fees with year and work it expects to process in dated October 31, 2019, regarding the costs, (2) protect the integrity of the a given fiscal year (an indicator of future preliminary proposed fees. The report trademark register, (3) improve the fee workload and budgetary can be found online at http://efficiency of USPTO processes related to requirements). Within the iterative trademark and TTAB operations, and (4) process for estimating aggregate ensure financial sustainability to revenue, the USPTO adjusts individual B. Initial Regulatory Flexibility facilitate effective trademark operations. fee rates up or down based on policy Analysis: The USPTO publishes this The legal basis for the proposed rule is and cost considerations and then Initial Regulatory Flexibility Analysis section 10 of the AIA, as amended, multiplies the resulting fee rates by (IRFA) as required by the Regulatory which provides the authority for the appropriate workload volumes to Flexibility Act (RFA) (5 U.S.C. 601 et Director to set or adjust by rule any fee calculate a revenue estimate for each seq.) to examine the impact of the established, authorized, or charged fee, which is then used to calculate the USPTO’s proposed changes to under the Trademark Act of 1946, 15 aggregate revenue. Additional details trademark fees on small entities and to U.S.C. 1051 et seq., as amended. See about the USPTO’s aggregate revenue, seek the public’s views. Under the RFA, also section 31 of the Trademark Act, 15 including projected workloads by fee, whenever an agency is required by 5 U.S.C. 1113. are available at https://www.uspto.gov/ U.S.C. 553 (or any other law) to publish 3. Description of and, Where Feasible, an NPRM, the agency must prepare and Estimate of the Number of Affected make available for public comment an Small Entities IRFA, unless the agency certifies under 4. Description of the Reporting, 5 U.S.C. 605(b) that the proposed rule, The USPTO does not collect or Recordkeeping, and Other Compliance if implemented, will not have a maintain statistics in trademark cases on Requirements of the Proposed Rule, significant economic impact on a small- versus large-entity applicants, Including an Estimate of the Classes of substantial number of small entities (see and this information would be required Small Entities Which Will Be Subject to 5 U.S.C. 603, 605). This IRFA the Requirement and the Type of in order to determine the number of incorporates the discussion of the Professional Skills Necessary for small entities that would be affected by proposed changes in the preamble Preparation of the Report or Record the proposed rule. above. This proposed rule would apply to The proposed rule imposes no new Items 1–5 below discuss the five items any entity filing trademark documents reporting or recordkeeping specified in 5 U.S.C. 603(b)(1)–(5) to be with the USPTO. The USPTO estimates, requirements. The main purpose of the addressed in an IRFA. Item 5 below based on the assumptions found in the proposed rule is to set and adjust discusses alternatives to this proposal FY 2021 Congressional Justification, trademark fees. However, the rule that the USPTO considered. that during the first full fiscal year proposes new procedural regulations at under the fees as proposed, the USPTO 37 CFR 2.149 for the submission of 1. Description of the Reasons That would expect to collect approximately letters of protest. The USPTO does not Action by the USPTO Is Being $77 million more in trademark collect or maintain statistics in Considered processing and TTAB fees in FY 2021. trademark cases on small versus large The USPTO proposes setting and The USPTO would receive an additional entity applicants and is unable to adjusting certain trademark fees as $40 million in fees from applications for provide an estimate of the classes of authorized by section 10 of the AIA, as the registration of a mark, including small entities that will be subject to the amended by Public Law 115–273, 132 requests for extension of protection and new procedural requirements. Stat. 4158 (the SUCCESS Act). The fee subsequent designations; $3 million 5. Description of Any Significant schedule proposed under section 10 in more from petitions, letters of protest, Alternatives to the Proposed Rule Which this rulemaking will, based on the and requests for reconsideration; and Accomplish the Stated Objectives of $28 million more for section 8 and Applicable Statutes and Which Congressional Justification, recover the section 71 affidavits. TTAB fees would Minimize Any Significant Economic aggregate estimated costs to the USPTO increase by $6 million. Impact of the Rule on Small Entities Trademark fees are collected for while achieving strategic and trademark-related services and products The USPTO considered four operational goals, such as implementing alternatives, based on the assumptions at different points in time in the measures to maintain trademark trademark application examination pendency and high trademark quality, process and over the lifecycle of the Justification, before recommending this modernizing the trademark IT systems, registration. Approximately 55% of all proposal: (1) The adjustments included continuing important programs for in this proposal, (2) an across-the-board trademark fee collections are from stakeholder and public outreach, application filing fees. Fees for TTAB adjustment of 22%, (3) the unit cost of enhancing operations of the TTAB, and proceedings and appeals comprise 2.5% providing services based on FY 2019 maintaining a sufficient operating costs, and (4) no change to the baseline of revenues. Fees from other trademark reserve. Aggregate costs are estimated of current fees. The alternatives are each activities, petitions, assignments and through the USPTO budget formulation certifications, and Madrid processing explained here with additional process with the annual preparation of are approximately 5% of revenues. Fees information regarding how each a five-year performance-based budget proposal was developed and the for filing post-registration and intent-to- request. Revenues are estimated based aggregate revenue estimated. A use filings, which subsidize the costs of on the projected demand (workload) for filing, search, examination, and TTAB description of the Aggregate Revenue trademark products and services and fee Methodologies is available at http:// activities, comprise 37.5%. rates.

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services. Further, it would not enhance relevant, well-supported letters of protest. In addition, the new procedural the efficiency of the process, as it would The USPTO proposes to set or adjust regulations for filing letters of protest offer no new incentives for users to trademark fees codified in 37 CFR parts are not anticipated to significantly timely file applications and other filings 2 and 7. Fees are adjusted for all impact affected entities because the or to resolve appeals and inter partes application filing types (i.e., paper proposed new regulations are based on proceedings at the TTAB more applications, applications filed via existing informal procedures set out in expeditiously. The proposed fee TEAS, and requests for extension of the TMEP. schedule for this alternative (labeled protection under section 66(a) of the Finally, the proposed new provision ‘‘Alternative 2—Across-the-Board Trademark Act (15 U.S.C. 1141f)). The at § 2.114(a) provides that a partial Adjustment’’) is available in the USPTO also proposes to set or adjust refund of the fee for a petition to cancel document entitled ‘‘Initial Regulatory may be made in cases of default certain other trademark processing fees Flexibility Act Tables’’ at http://judgement where there was no to further effective administration of the trademark system. For example, the filings were made other than the proposed rule increases the fees for A third alternative that was petition to cancel. This change would certain petitions to the Director as well considered was to set all trademark fees as section 8 and section 71 affidavits, likely balance the cost recovery to allow for the USPTO to recover 100% sets a new fee and proposes procedural obtained from the increase in the fee for of the unit costs associated with each regulations for filing a letter of protest, a petition to cancel, a case type that has product or service provided, based on and sets new fees for filing a request for increased markedly in recent years, the historical unit costs of the products reconsideration more than three months against the benefit of having petitions to and services provided by the USPTO. after a final Office action and for cancel filed to remove registrations from The USPTO uses activity based deleting goods, services, and/or classes the register when petitioners have information to determine the unit costs from a registration after submission and determined through their investigations of activities that contribute to the prior to acceptance of a section 8 or that the registered marks are no longer services and processes provided by section 71 affidavit. in use. In such situations, default individual fees. It is common practice in The USPTO chose the alternative judgments often result, efficiently the federal government to set a proposed in this rule because it will clearing the register of marks that would particular fee at a level that recovers the enable the Office to achieve its goals otherwise stand as potential bars to cost of a given good or service. In Office effectively and efficiently without applications seeking to register similar of Management and Budget (OMB) unduly burdening small entities, marks. This reduces costs for applicants Circular A–25, User Charges, the OMB erecting barriers to entry, or stifling filing such applications. states that user charges (fees) should be incentives to innovate. The alternative The proposed fee schedule for this sufficient to recover the full cost to the proposed here secures the USPTO’s alternative (labeled ‘‘Alternative 1— federal government of providing the Proposed Alternative’’) is available in objectives for meeting the strategic goals particular service, resource, or good, the document entitled ‘‘Initial of encouraging broader usage of IP when the government is acting in its Regulatory Flexibility Act Tables’’ at rights-protection mechanisms and capacity as sovereign. Under the unit participation by more trademark owners http://www.uspto.gov/about-us/ cost recovery alternative, fees are and more efficient resolution of appeals performance-and-planning/fee-setting- generally set in line with the FY 2019 and inter partes proceedings at the and-adjusting. cost of providing the product or service. Another alternative to setting and TTAB by increasing revenue to meet the This alternative would produce a adjusting the proposed fees that was Office’s aggregate future costs. In structure in which application and considered was to increase all fees by particular, the new fee structure for processing fees would increase the same 22% across the board. This requests for reconsideration and significantly for all applicants and alternative would maintain the status requests to delete goods, services, and/ intent-to-use and post-registration quo structure of cost recovery, where or classes from a registration would maintenance filing fees would decrease processing and examination costs are protect the integrity of the register and dramatically when compared with subsidized by fees paid for intent-to-use the efficiency of the process by current fees. In addition, these fees and post-registration maintenance incentivizing both more timely filings would change from year to year with the filings (both of which exceed the cost of and proactive action by applicants and ebb and flow in the number of performing these services), given that all registrants. The increased efficiencies applications submitted. This alternative fees would be adjusted by the same realized through the proposed rule will was rejected because it was determined escalation factor. This structure would benefit all applicants and registrants by that the unit costs for any given product promote innovation strategies and allow allowing registrations to be granted or service can vary from year to year, applicants to gain access to the sooner and more efficiently by removing such that a yearly review of all, and an trademark system through fees set below unused marks and unsupported goods adjustment to many, trademark fees cost, while registrants pay maintenance and services from the register. All would be continually required and fees above cost to subsidize the below- trademark applicants should benefit could also lead to consumer confusion cost front-end fees. This alternative was from the efficiency that will be realized regarding the amount at which any ultimately rejected. Although this under the proposed alternative. given trademark fee was currently set With regard to the new regulations alternative generates sufficient aggregate and what the relevant fee would be in governing the filing of letters of protest, revenue to recover aggregate operating the future. Additionally, this alternative the USPTO anticipates that the impact costs, unlike the proposed fee structure, does not address improvements in fee there would be no improvements in fee to affected entities would be small. The design to accomplish the stated proposed fee of $50 is set at a level high schedule design. As such, this objectives of encouraging broader usage enough to recognize there are processing alternative would not accomplish the of IP rights-protection mechanisms and stated objective of enhancing the costs and deter the filing of unsupported participation by more trademark owners or irrelevant filings, but low enough so integrity of the register by incentivizing as well as practices that improve the as not to discourage the filing of users to maintain accurate goods and

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affect children under Executive Order efficiency of the process. The USPTO burden on society consistent with 13045 (Apr. 21, 1997). recognizes that this approach does not obtaining the regulatory objectives; (3) K. Executive Order 12630 (Taking of account for changes in the fee structure selected a regulatory approach that Private Property): This rulemaking will or inflationary factors that could likely maximizes net benefits; (4) specified not affect a taking of private property or increase the costs of certain trademark performance objectives; (5) identified otherwise have taking implications services and necessitate higher fees in and assessed available alternatives; (6) under Executive Order 12630 (Mar. 15, the out-years. However, the USPTO provided the public with a meaningful 1988). contends that the FY 2019 data is the opportunity to participate in the L. Congressional Review Act: Under best unit cost data available to inform regulatory process, including soliciting the Congressional Review Act this analysis. The proposed fee schedule the views of those likely affected prior provisions of the Small Business for this alternative (labeled ‘‘Alternative to issuing a notice of proposed Regulatory Enforcement Fairness Act of 3—Unit Cost Recovery’’) is available in rulemaking, and provided online access 1996 (5 U.S.C. 801 et seq.), prior to the document entitled ‘‘Initial to the rulemaking docket; (7) attempted issuing any final rule, the USPTO will Regulatory Flexibility Act Tables’’ at to promote coordination, simplification, submit a report containing the final rule http://www.uspto.gov/about-us/ and harmonization across government and other required information to the performance-and-planning/fee-setting- agencies and identified goals designed United States Senate, the United States and-adjusting. to promote innovation; (8) considered House of Representatives, and the A final alternative to setting and approaches that reduce burdens and comptroller general of the Government adjusting the proposed fees would be to maintain flexibility and freedom of Accountability Office. The changes in take no action at this time regarding choice for the public; and (9) ensured this rulemaking are not expected to trademark fees and to leave all the objectivity of scientific and result in an annual effect on the trademark fees as currently set. This technological information and economy of $100 million or more, a alternative was rejected because, due to processes, to the extent applicable. major increase in costs or prices, or changes in demand for certain services E. Executive Order 13771 (Reducing significant adverse effects on and rising costs, the Office has Regulation and Controlling Regulatory competition, employment, investment, determined that a fee increase is needed Costs): This proposed rule is not productivity, innovation, or the ability to meet future budgetary requirements expected to be subject to the of United States-based enterprises to as described in the FY 2021 Budget. As requirements of Executive Order 13771 compete with foreign-based enterprises previously explained, the proposed fee (Jan. 30, 2017) because this proposed in domestic and export markets. schedule will assist in promoting access rule is expected to involve a transfer Therefore, this rulemaking is not to the trademark system, protecting the payment. expected to result in a ‘‘major rule’’ as integrity of the register, and promoting F. Executive Order 13132 defined in 5 U.S.C. 804(2). the efficiency of the trademark (Federalism): This rule does not contain M. Unfunded Mandates Reform Act of registration process by incentivizing: (1) policies with federalism implications 1995: The changes set forth in this Maintenance of registrations for goods sufficient to warrant preparation of a rulemaking do not involve a Federal and services for which marks are Federalism Assessment under Executive intergovernmental mandate that will actually in use, (2) more timely filing of Order 13132 (Aug. 4, 1999). result in the expenditure by State, local, applications and other documents, and G. Executive Order 13175 (Tribal and tribal governments, in the aggregate, (3) faster resolution of appeals and inter Consultation): This rulemaking will not: of $100 million (as adjusted) or more in partes proceedings at the TTAB. The fee (1) Have substantial direct effects on one any one year, or a Federal private sector schedule for this alternative (labeled or more Indian tribes; (2) impose mandate that will result in the ‘‘Alternative 4—Baseline—Current Fee substantial direct compliance costs on expenditure by the private sector of Schedule’’) is available in the document Indian tribal governments; or (3) $100 million (as adjusted) or more in entitled ‘‘Initial Regulatory Flexibility preempt tribal law. Therefore, a tribal any one year, and will not significantly Act Tables’’ at http://www.uspto.gov/ summary impact statement is not or uniquely affect small governments. required under Executive Order 13175 Therefore, no actions are necessary (Nov. 6, 2000). under the provisions of the Unfunded 6. Identification, to the Extent H. Executive Order 13211 (Energy Mandates Reform Act of 1995. See 2 Practicable, of All Relevant Federal Effects): This rulemaking is not a U.S.C. 1501 et seq. Rules Which May Duplicate, Overlap, or significant energy action under N. National Environmental Policy Conflict With the Proposed Rule Executive Order 13211 because this Act: This rulemaking will not have any rulemaking is not likely to have a effect on the quality of the environment The proposed rule would not significant adverse effect on the supply, and is thus categorically excluded from duplicate, overlap, or conflict with any distribution, or use of energy. Therefore, review under the National other federal rules. a Statement of Energy Effects is not C. Executive Order 12866 (Regulatory Environmental Policy Act of 1969. See required under Executive Order 13211 Planning and Review): This rule has 42 U.S.C. 4321 et seq. (May 18, 2001). been determined to be Significant for O. National Technology Transfer and I. Executive Order 12988 (Civil Justice Advancement Act: The requirements of purposes of Executive Order 12866 Reform): This rulemaking meets section 12(d) of the National (Sept. 30, 1993). applicable standards to minimize D. Executive Order 13563 (Improving Technology Transfer and Advancement litigation, eliminate ambiguity, and Regulation and Regulatory Review): The Act of 1995 (15 U.S.C. 272 note) are not reduce burden as set forth in sections USPTO has complied with Executive applicable because this rulemaking does 3(a) and 3(b)(2) of Executive Order Order 13563 (Jan. 18, 2011). not contain provisions that involve the 12988 (Feb. 5, 1996). Specifically, the USPTO has, to the use of technical standards. P. Paperwork Reduction Act: This rule extent feasible and applicable: (1) Made J. Executive Order 13045 (Protection

of Children): This rulemaking does not involves information collection a reasoned determination that the requirements that are subject to review concern an environmental risk to health benefits justify the costs of the rule; (2) and approval by OMB under the or safety that may disproportionately tailored the rule to impose the least

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Paperwork Reduction Act of 1995 (44 OMB control numbers 0651–0009, certain trademark fees, which would U.S.C. 3501 et seq.). The collections of 0651–0027, 0651–0028, 0651–0040, increase the annual non-hour cost information involved with this 0651–0050, 0651–0051, 0651–0054, burdens $42,483,850, as set out in the proposed rule have been reviewed and 0651–0055, 0651–0056, and 0651–0061. following table: previously approved by OMB under This action proposes to set or increase

Estimated increase in cost OMB control No. Information collection title burdens (fees) due to proposed rule

0651–0009 .......................... Applications for Trademark Registration .................................................................................... $23,410,200

0651–0040 .......................... Trademark Trial and Appeal Board (TTAB) Actions .................................................................. 4,833,700

0651–0050 .......................... Response to Office Action and Voluntary Amendment Forms .................................................. 7,006,500

0651–0051 .......................... Madrid Protocol .......................................................................................................................... 325,100

0651–0054 .......................... Substantive Submissions Made During Prosecution of the Trademark Application ................. 3,045,650

0651–0055 .......................... Post Registration (Trademark Processing) ................................................................................ 3,862,700

For the reasons stated in the preamble (12) Affidavit under section 8. (i) For This estimated cost burden increase is filing an affidavit under section 8 of the based on the currently OMB approved and under the authority contained in section 10(a) of the AIA, 15 U.S.C. 1113, Act on paper, per class—$325.00 response volumes associated with these 1123, and 35 U.S.C. 2, as amended, the information collections, which may be (ii) For filing an affidavit under slightly different than the workflow USPTO proposes to amend parts 2 and section 8 of the Act through TEAS, per forecasts cited in other parts of this 7 of title 37 as follows: class—$225.00 proposed rule. In addition, any updates (iii) For deleting goods, services, and/ PART 2—RULES OF PRACTICE IN to the aforementioned information TRADEMARK CASES collections as a result of this proposed acceptance of an affidavit under section rulemaking will be submitted to OMB 8 of the Act on paper, per class— ■ 1. The authority citation for part 2 for approval prior to the effective date $350.00 continues to read as follows: of the final rule. (iv) For deleting goods, services, and/ Comments regarding the collection of Authority: 15 U.S.C. 1113, 1123; 35 U.S.C. information associated with this 2; sec. 10, Pub. L. 112–29, 125 Stat. 284, acceptance of an affidavit under section unless otherwise noted. Sec. 2.99 also issued proposed rule, including suggestions for 8 of the Act through TEAS, per class— under secs. 16, 17, 60 Stat. 434; 15 U.S.C. reducing the burden, may be sent to the $250.00 1066, 1067. Commissioner for Trademarks, by mail * * * * * ■ 2. Amend § 2.6 by: to P.O. Box 1451, Alexandria, VA (15) Petitions to the Director. (i) For ■ a. Revising paragraphs (a)(1)(i) 22313–1451, attention Catherine Cain; filing a petition under § 2.146 or § 2.147 through (v); by hand delivery to the Trademark on paper—$350.00 Assistance Center, Concourse Level, ■ b. Adding paragraph (a)(11)(iii); (ii) For filing a petition under § 2.146 James Madison Building-East Wing, 600 ■ c. Revising paragraphs (a)(12), (15) or § 2.147 through TEAS—$250.00 Dulany Street, Alexandria, Virginia through (18), (22), and (23); and (iii) For filing a petition under § 2.66 22314, attention Catherine Cain; or by ■ d. Adding paragraphs (a)(24) through on paper—$250.00 electronic mail message via the Federal (26). (iv) For filing a petition under § 2.66 eRulemaking Portal (https://The revisions and additions read as through TEAS—$150.00 www.regulations.gov). All comments follows: (16) Petition to cancel. (i) For filing a submitted directly to the USPTO or petition to cancel on paper, per class— § 2.6 Trademark fees. provided on the Federal eRulemaking $700.00 (a) * * * Portal should include the docket (ii) For filing a petition to cancel (1) * * * number (PTO–T–2019–0027). through ESTTA, per class—$600.00 (i) For filing an application on paper, Notwithstanding any other provision (17) Notice of opposition. (i) For filing per class—$750.00 of law, no person is required to respond a notice of opposition on paper, per (ii) For filing an application under to nor shall a person be subject to a class—$700.00 section 66(a) of the Act, per class— penalty for failure to comply with a (ii) For filing a notice of opposition $500.00 collection of information subject to the through ESTTA, per class—$600.00 requirements of the Paperwork (iii) For filing a TEAS Standard (18) Ex parte appeal. (i) For filing an Reduction Act unless that collection of application, per class—$350.00 ex parte appeal to the Trademark Trial information has a currently valid OMB (iv) For filing a TEAS Plus application and Appeal Board on paper, per class— control number. under § 2.22, per class—$250.00 $325.00 (v) Additional processing fee under (ii) For filing an ex parte appeal to the List of Subjects § 2.22(c), per class—$100.00 Trademark Trial and Appeal Board 37 CFR Part 2 * * * * * through ESTTA, per class—$225.00 (11) * * *. (iii) For filing a first request for an Administrative practice and extension of time to file an appeal brief, (iii) For filing an amendment to a procedure, Courts, Lawyers, per application—$0.00 registration prior to submission of an Trademarks. (iv) For filing a second or subsequent affidavit under section 8 or section 71 37 CFR Part 7 of the Act and consisting only of the an appeal brief on paper, per Administrative practice and deletion of goods, services, and/or application—$200.00 procedure, Trademarks. classes—$0.00

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and sufficient explanation that (v) For filing a second or subsequent and default judgment is entered with no establishes the special circumstances appearance by the defendant, and no that necessitate providing more than 10 an appeal brief through ESTTA, per items of evidence per refusal ground or application—$100.00 to cancel, $200 of the petition to cancel more than 75 total pages of evidence; (vi) For filing an appeal brief on fee may be refunded. and paper, per class—$300.00 * * * * * (ii) A concise factual statement of the (vii) For filing an appeal brief through ■ 4. Add § 2.149 before the center relevant ground(s) for refusal of ESTTA, per class—$200.00 heading ‘‘Certificate’’ to read as follows: registration appropriate in ex parte * * * * * examination that each item identified § 2.149 Letters of protest against pending (22) Extension of time for filing a applications. supports; and notice of opposition under (a) A third party may submit, for (4) A clear and legible copy of each § 2.102(c)(1)(ii) or (c)(2). (i) For filing a consideration and entry in the record of item identified in the evidence index a trademark application, objective where: a notice of opposition under evidence relevant to the examination of (i) Copies of third-party registrations § 2.102(c)(1)(ii) or (c)(2) on paper— the application for a ground for refusal come from the electronic records of the $400.00 of registration if the submission is made Office and show the current status and (ii) For filing a request for an in accordance with this section. title of the registration; extension of time to file a notice of (ii) Evidence from the internet (b) A party protesting multiple opposition under § 2.102(c)(1)(ii) or includes the date the evidence was applications must file a separate (c)(2) through ESTTA—$200.00 published or accessed and the complete submission under this section for each (23) Extension of time for filing a URL address of the website; and notice of opposition under § 2.102(c)(3). (iii) Copies of printed publications (c) Any submission under this section (i) For filing a request for an extension identify the publication name and date must be filed no later than 30 days after of time to file a notice of opposition of publication. the date the application is published for under § 2.102(c)(3) on paper—$500.00 (g) Any submission under this section opposition under section 12(a) of the (ii) For filing a request for an may not be entered or considered by the Act and § 2.80 of this part. If the subject extension of time to file a notice of Office if: application cannot be withdrawn from opposition under § 2.102(c)(3) through (1) Any part of the submission is not issuance of a registration while ESTTA—$400.00 in compliance with this section; consideration of the protest is pending, (24) Oral hearing. For filing a request (2) The application record shows that the protest may be considered untimely. for an oral hearing before the Trademark the examining attorney already (d)(1) If the letter of protest is filed Trial and Appeal Board, per considered the refusal ground(s) before publication of the subject proceeding—$500.00 specified in the submission; or (25) Letter of protest. For filing a letter (3) A provision of the Act or parts 2 of protest, per subject application— or 7 of this chapter precludes refusal, such that it is appropriate for $50.00 acceptance of the submission. the examining attorney to consider (26) Request for reconsideration. (i) (h) If a submission is determined to be whether to issue a refusal or make a For filing a request for reconsideration in compliance with this section, only requirement under the Act or this part. within three months after the issue date the specified ground(s) for refusal and (2) If the letter of protest is filed on of a final Office action through TEAS— the provided evidence relevant to the or within 30 days after the date of $0.00 ground(s) for refusal will be included in publication of the subject application, (ii) For filing a request for the application record for consideration the evidence must establish a prima reconsideration more than three months by the examining attorney. An applicant facie case for refusal on the identified after and within six months of the issue need not and should not reply to the ground(s), such that failure to issue a date of a final Office action, or with a entry into the application record of such refusal or to make a requirement would petition under § 2.66, on paper— evidence in the absence of an Office likely result in issuance of a registration $500.00 action issuing that includes such in violation of the Act or this part. (iii) For filing a request for evidence. (e) Filing a submission under this reconsideration more than three months (i) Any determination whether to section does not stay or extend the time after and within six months of the issue include in an application record the for filing a notice of opposition. date of a final Office action, or with a ground(s) or evidence for a refusal of (f) Any submission under this section petition under § 2.66, through TEAS or registration in a submission under this must be made in writing, filed through ESTTA—$400.00 section is not petitionable. TEAS, and include: (j) A third party filing a submission (1) The fee required by § 2.6(a)(25); * * * * * under this section will not receive any (2) The serial number of the pending ■ 3. Amend § 2.114 by revising communication from the Office relating application that is the subject of the paragraph (a) to read as follows: to the submission other than protest; acknowledgement that it has been § 2.114 Answer. (3) An itemized evidence index that received by the Office and notification (a)(1) If no answer is filed within the does not identify the protestor or its of whether the submission is found to time initially set, or as later may be reset representatives, does not contain legal be compliant or non-compliant with this by the Board, the petition may be argument, and includes: section. Communications with the third (i) An identification of the documents, decided as in the case of default. The party will not be made of record in the or portions of documents, being failure to file a timely answer tolls all application. The Office will not accept submitted as evidence. The submission deadlines, including the discovery amendments to a non-compliant may not total more than 10 items of conference, until the issue of default is submission that was previously filed. evidence in support of a specified resolved. Instead, a third party who previously ground of refusal and more than 75 total (2) If the cancellation proceeding is filed a non-compliant submission may pages of evidence without a detailed based solely on abandonment or nonuse

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previously submitted to the Office, (ii) Specify the goods, services, or file another submission that meets the include a copy of the revised requirements of paragraph (f) of this classes being deleted from the section, provided the time period for certification standards; registration, if the affidavit or filing a submission in paragraph (c) of declaration covers fewer than all the (ii) State that the owner is exercising this section has not closed. goods, services, or classes in the legitimate control over the use of the (k) The limited involvement of the registration; mark in commerce; and third party ends with the filing of the (6)(i) State that the registered mark is (iii) Satisfy the requirements of submission under this section. The third in use in commerce; or § 2.45(a)(4)(i)(A) and (C). (ii) If the registered mark is not in use party may not directly contact the (10) For requirements of a complete in commerce on or in connection with examining attorney assigned to the affidavit or declaration of use in all the goods, services, or classes commerce or excusable nonuse for a ■ 5. Revise § 2.161 to read as follows: specified in the registration, set forth the registration that issued from a section date when such use of the mark in 66(a) basis application, see § 7.37. § 2.161 Requirements for a complete commerce stopped and the approximate (b) Requirement for the submission of affidavit or declaration of use in commerce date when such use is expected to additional information, exhibits, or excusable nonuse; requirement for the resume; and recite facts to show that affidavits or declarations, and submission of additional information, nonuse as to those goods, services, or specimens. The Office may require the exhibits, affidavits or declarations, and classes is due to special circumstances specimens; and fee for deletions of goods, owner to furnish such information, that excuse the nonuse and is not due services, and/or classes from a registration. exhibits, affidavits or declarations, and (a) Requirements for a complete to an intention to abandon the mark; such additional specimens as may be affidavit or declaration. A complete and reasonably necessary to the proper (7) Include one specimen showing affidavit or declaration under section 8 examination of the affidavit or how the mark is in use in commerce for of the Act must: declaration under section 8 of the Act or (1) Be filed by the owner within the each class in the registration, unless for the Office to assess and promote the period set forth in § 2.160(a); excusable nonuse is claimed under accuracy and integrity of the register. (2) Include a verified statement paragraph (a)(6)(ii) of this section. When (c) Fee for deletions of goods, services, attesting to the use in commerce or requested by the Office, additional and/or classes from a registration. excusable nonuse of the mark within the specimens must be provided. The Deletions by the owner of goods, period set forth in section 8 of the Act. specimen must meet the requirements of services, and/or classes from a This verified statement must be § 2.56. registration after submission and prior executed on or after the beginning of the (8) Additional requirements for a to acceptance of the affidavit or filing period specified in § 2.160(a); collective mark: In addition to the above declaration must be accompanied by the (3) Include the U.S. registration requirements, a complete affidavit or relevant fee in § 2.6(a)(12)(iii) or (iv). number; declaration pertaining to a collective (4)(i) Include the fee required by § 2.6 mark must: PART 7—RULES OF PRACTICE IN for each class that the affidavit or (i) State that the owner is exercising FILINGS PURSUANT TO THE declaration covers; legitimate control over the use of the PROTOCOL RELATING TO THE (ii) If the affidavit or declaration is mark in commerce; and MADRID AGREEMENT CONCERNING filed during the grace period under (ii) If the registration issued from an THE INTERNATIONAL REGISTRATION section 8(a)(3) of the Act, include the application based solely on section 44 of OF MARKS grace period surcharge per class the Act, state the nature of the owner’s required by § 2.6; control over the use of the mark by the ■ 6. The authority citation for 37 CFR (iii) If at least one fee is submitted for members in the first affidavit or part 7 continues to read as follows: a multiple-class registration, but the fee declaration filed under paragraph (a)(1) Authority: 15 U.S.C. 1123, 35 U.S.C. 2, is insufficient to cover all the classes, of this section. unless otherwise noted. and the class(es) to which the fee(s) (9) Additional requirements for a ■ 7. Amend § 7.6 by revising paragraph should be applied are not specified, the certification mark: In addition to the (a)(6) read as follows: Office will issue a notice requiring above requirements, a complete affidavit either submission of the additional or declaration pertaining to a § 7.6 Schedule of U.S. process fees. fee(s) or specification of the class(es) to certification mark must: (a) * * * which the initial fee(s) should be (i) Include a copy of the certification (6) Affidavit under section 71. (i) For applied. Additional fees may be standards specified in § 2.45(a)(4)(i)(B); filing an affidavit under section 71 of (A) Submitting certification standards submitted if the requirements of § 2.164 the Act on paper, per class—$325.00 for the first time. If the registration are met. If the additional fee(s) are not (ii) For filing an affidavit under issued from an application based solely submitted within the time period set out section 71 of the Act through TEAS, per on section 44 of the Act, include a copy in the Office action and the class(es) to class—$225.00 of the certification standards in the first which the original fee(s) should be (iii) For deleting goods, services, and/ affidavit or declaration filed under applied are not specified, the Office will paragraph (a)(1) of this section; or presume that the fee(s) cover the classes acceptance of an affidavit under section (B) Certification standards submitted in ascending order, beginning with the 71 of the Act on paper, per class— in prior filing. If the certification lowest numbered class; $350.00 standards in use at the time of filing the (5)(i) Specify the goods, services, or (iv) For deleting goods, services, and/ affidavit or declaration have not nature of the collective membership changed since the date they were organization for which the mark is in acceptance of an affidavit under section previously submitted to the Office, use in commerce, and/or the goods, 71 of the Act through TEAS, per class— include a statement to that effect; if the services, or nature of the collective $250.00 certification standards in use at the time membership organization for which of filing the affidavit or declaration have * * * * * excusable nonuse is claimed under changed since the date they were paragraph (a)(6)(ii) of this section; and ■ 8. Revise § 7.37 to read as follows:

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include a copy of the revised excusable nonuse is claimed under § 7.37 Requirements for a complete certification standards; affidavit or declaration of use in commerce paragraph (a)(6)(ii) of this section; and or excusable nonuse; requirement for the (ii) Specify the goods, services, or (ii) State that the holder is exercising submission of additional information, classes being deleted from the legitimate control over the use of the exhibits, affidavits or declarations, and registration, if the affidavit or mark in commerce; and specimens; and fee for deletions of goods, declaration covers fewer than all the (iii) Satisfy the requirements of services, and/or classes from a registration. goods, services, or classes in the § 2.45(a)(4)(i)(A) and (C) of this chapter. (a) Requirements for a complete registration; (b) Requirement for the submission of affidavit or declaration. A complete (6)(i) State that the registered mark is additional information, exhibits, affidavit or declaration under section 71 in use in commerce; or affidavits or declarations, and of the Act must: (ii) If the registered mark is not in use specimens. The Office may require the (1) Be filed by the holder of the in commerce on or in connection with holder to furnish such information, international registration within the all the goods, services, or classes exhibits, affidavits or declarations, and period set forth in § 7.36(b); specified in the registration, set forth the such additional specimens as may be (2) Include a verified statement date when such use of the mark in reasonably necessary to the proper attesting to the use in commerce or commerce stopped and the approximate examination of the affidavit or excusable nonuse of the mark within the date when such use is expected to declaration under section 71 of the Act period set forth in section 71 of the Act. resume; and recite facts to show that or for the Office to assess and promote The verified statement must be executed nonuse as to those goods, services, or the accuracy and integrity of the on or after the beginning of the filing classes is due to special circumstances register. period specified in § 7.36(b). A person that excuse the nonuse and is not due (c) Fee for deletions of goods, services, who is properly authorized to sign on to an intention to abandon the mark; and/or classes from a registration. behalf of the holder is: and Deletions by the holder of goods, (i) A person with legal authority to (7) Include one specimen showing services, and/or classes from a bind the holder; how the mark is in use in commerce for registration after submission and prior (ii) A person with firsthand each class in the registration, unless to acceptance of the affidavit or knowledge of the facts and actual or excusable nonuse is claimed under declaration must be accompanied by the implied authority to act on behalf of the paragraph (a)(6)(ii) of this section. When relevant fee in § 7.6(a)(6)(iii) or (iv). holder; or requested by the Office, additional (iii) An attorney as defined in § 11.1 Dated: June 12, 2020. specimens must be provided. The of this chapter who has an actual Andrei Iancu, specimen must meet the requirements of written or verbal power of attorney or an § 2.56 of this chapter. Under Secretary of Commerce for Intellectual implied power of attorney from the (8) Additional requirements for a Property and Director of the United States holder. Patent and Trademark Office. collective mark: In addition to the above (3) Include the U.S. registration requirements, a complete affidavit or [FR Doc. 2020–13262 Filed 6–18–20; 8:45 am] number; declaration pertaining to a collective BILLING CODE 3510–16–P (4)(i) Include the fee required by § 7.6 mark must: for each class that the affidavit or (i) State that the holder is exercising declaration covers; legitimate control over the use of the ENVIRONMENTAL PROTECTION (ii) If the affidavit or declaration is mark in commerce; and AGENCY filed during the grace period under (ii) State the nature of the holder’s section 71(a)(3) of the Act, include the control over the use of the mark by the 40 CFR 83 grace period surcharge per class members in the first affidavit or required by § 7.6; declaration filed under paragraph (a)(1) [EPA–HQ–OAR–2020–00044; FRL 10011– (iii) If at least one fee is submitted for 13–OAR] of this section. a multiple-class registration, but the fee (9) Additional requirements for a RIN 2060–AU51 is insufficient to cover all the classes, certification mark: In addition to the and the class(es) to which the fee(s) above requirements, a complete affidavit Increasing Consistency and should be applied are not specified, the or declaration pertaining to a Transparency in Considering Benefits Office will issue a notice requiring certification mark must: and Costs in the Clean Air Act either submission of the additional (i) Include a copy of the certification Rulemaking Process; Extension of fee(s) or specification of the class(es) to standards specified in § 2.45(a)(4)(i)(B) Comment Period and Public Hearing which the initial fee(s) should be of this chapter; applied. Additional fees may be : Environmental Protection (A) Submitting certification standards AGENCYsubmitted if the requirements of § 7.39 for the first time. In the first affidavit or Agency (EPA). are met. If the additional fee(s) are not declaration filed under paragraph (a)(1) : Notice of proposed rulemaking; ACTIONsubmitted within the time period set out of this section, include a copy of the extension of comment period and in the Office action, and the class(es) to certification standards; or notification of public hearing. (B) Certification standards submitted which the original fee(s) should be : On June 11, 2020, the in prior filing. If the certification applied are not specified, the Office will SUMMARYstandards in use at the time of filing the Environmental Protection Agency (EPA) presume that the fee(s) cover the classes affidavit or declaration have not published the proposed rulemaking in ascending order, beginning with the changed since the date they were ‘‘Increasing Consistency and lowest numbered class; previously submitted to the Office, (5)(i) Specify the goods, services, or Transparency in Considering Benefits include a statement to that effect; if the nature of the collective membership and Costs in the Clean Air Act certification standards in use at the time organization for which the mark is in Rulemaking Process.’’ The EPA is of filing the affidavit or declaration have use in commerce, and/or the goods, extending the comment period on the changed since the date they were services, or nature of the collective proposed rulemaking. The EPA is also previously submitted to the Office, membership organization for which announcing that a virtual public hearing

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