TMEP 306.05: Certificate of Transmission Procedure

October 2017 Edition of the TMEP

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306.05    Certificate of Transmission Procedure

37 C.F.R. §2.197  Certificate of mailing or transmission.

  • (a) Except in the cases enumerated in paragraph (a)(2) of this section, correspondence required to be filed in the Office within a set period of time will be considered as being timely filed if the procedure described in this section is followed.  The actual date of receipt will be used for all other purposes.
  • (1) Correspondence will be considered as being timely filed if:
  • (i) The correspondence is mailed or transmitted prior to expiration of the set period of time by being:
  • (A) Addressed as set out in §2.190 and deposited with the U.S. Postal Service with sufficient postage as first class mail; or
  • (B) Transmitted by facsimile to the Office in accordance with §2.195(c); and
  • (ii) The correspondence includes a certificate for each piece of correspondence stating the date of deposit or transmission.  The person signing the certificate should have a reasonable basis to expect that the correspondence would be mailed or transmitted on or before the date indicated.
  • (2) The procedure described in paragraph (a)(1) of this section does not apply to:
  • (i) Applications for the registration of marks under 15 U.S.C. 1051 or 1126; and
  • (ii) Madrid-related correspondence filed under §7.11, §7.21, §7.14, §7.23, §7.24 or §7.31.
  • (b) In the event that correspondence is considered timely filed by being mailed or transmitted in accordance with paragraph (a) of this section, but not received in the Office, and an application is abandoned, a registration is cancelled or expired, or a proceeding is dismissed, terminated, or decided with prejudice, the correspondence will be considered timely if the party who forwarded such correspondence:
  • (1) Informs the Office of the previous mailing or transmission of the correspondence within two months after becoming aware that the Office has no evidence of receipt of the correspondence;
  • (2) Supplies an additional copy of the previously mailed or transmitted correspondence and certificate; and
  • (3) Includes a statement that attests on a personal knowledge basis or to the satisfaction of the Director to the previous timely mailing or transmission.  If the correspondence was sent by facsimile transmission, a copy of the sending unit’s report confirming transmission may be used to support this statement.
  • (c) The Office may require additional evidence to determine whether the correspondence was timely filed.

Trademark Rule 2.197, 37 C.F.R. §2.197, provides a certificate of transmission procedure to avoid lateness when correspondence is faxed within the response period but is received in the USPTO after expiration of the response period, or not received, or lost within the USPTO.  The certificate of transmission procedure may be used for any correspondence that may be filed by fax.  See TMEP §306.01 regarding documents that may not be filed by fax.

Under the certificate of transmission procedure, certain correspondence will be considered to be timely filed even if received after the end of the filing period, if the correspondence is transmitted by fax to the USPTO before the expiration of the filing period and accompanied by a certificate attesting to the date of transmission.  The person signing the certificate certifies the expectation that the transmission would be initiated before midnight, local time, on the date specified.

Filers must retain a copy of the correspondence, including the signed and dated certificate. See In re Sasson Licensing Corp., 35 USPQ2d 1510, 1512 (Comm’r Pats. 1995).

See TMEP §306.05(d) regarding the procedure for establishing the timely filing of correspondence that was faxed to the USPTO with a certificate of transmission under 37 C.F.R. §2.197, but was lost or misplaced.