TMEP 1705.03: Evidence and Proof of Facts

October 2017 Edition of the TMEP

Previous: §1705.02 | Next: §1705.04

1705.03    Evidence and Proof of Facts

A petition should include a statement of the relevant facts, and should be accompanied by any evidence to be considered.  Under 37 C.F.R. §2.146(c), when facts are to be proved, the petitioner must submit proof in the form of an affidavit or declaration under 37 C.F.R. §2.20.

An affidavit or declaration supporting a petition should be based on firsthand knowledge.  For example, if the petition arises from the loss or misplacement of a document submitted to the USPTO, it should be accompanied by the affidavit or declaration of the person who sent the document, attesting to the date of submission and identifying the document filed with the petition as a true copy of the document previously filed.

When a petition includes an unverified assertion that is not supported by evidence, a staff attorney or paralegal in the Office of the Deputy Commissioner for Trademark Examination Policy will notify the petitioner that an affidavit or declaration is required, and grant the petitioner 30 days to submit the necessary verification.  If the petitioner does not submit a verification within the time allowed, the petition will be denied, or, in appropriate cases, a decision on petition will be rendered based on the information in the record, without consideration of the unverified assertion.

This procedure is also followed with respect to physical evidence.  If physical evidence is available, such as a postcard receipt that shows the date of actual receipt of a document in the USPTO ( see TMEP §303.02(c)), or a copy of a cancelled check that shows receipt of the filing fee for a missing document, the petitioner should include the evidence with the initial petition.  However, if the evidence is omitted from the initial filing, the USPTO will give the petitioner an opportunity to supplement the petition within a specified time limit, normally 30 days.