Sent: Monday, April 28, 2008 5:41 PM
To: TM Mailing Rules
Subject: Comments on Proposed Changes in Rules (1328 OG 200)
RE: Changes in Rules Regarding Filing Trademark Correspondence by Express Mail or Under a Certificate of Mailing or Transmission (1328 OG 200)
Director of the United States Patent and Trademark Office
I would like to submit the following comments on the above-identified proposed rulemaking, and would appreciate your consideration of them.
My understanding of the changes being proposed is that for virtually all types of filings to be made in connection with U.S. trademark applications and U.S. trademark registrations, all forms of mailing certificates (either by "Express Mail" or by "First Class Mail") would be eliminated, and would no longer be effective, leaving TEAS as the only method available for effectively assuring that a timely filing has been made. If I have correctly understood the changes being proposed, I must strenuously object to them.
Removing options for the assured mailing of filings to the U.S. Trademark Office would leave TEAS as the only possible method for the assured submission of filings to the Office, and would provide no back-up or alternative procedure for making an assured, timely filing. TEAS, however, is an electronic media, which requires not only that the U.S. Trademark Office website operates properly, but which also requires that the equipment of the applicant or registrant and/or the equipment of their representative operates properly.
It is noted that provisions have been made for situations in which TEAS is unavailable due to technical problems associated with TEAS (noting, for example, those Sections of the TMEP which are identified at 1328 OG 202), and such provisions are certainly welcomed by those using the U.S. Trademark Office. It should also be noted, however, that other technical problems which can arise from the use of electronic media are not accommodated by such provisions. For example, such provisions would not accommodate technical problems associated with the Internet connection to TEAS, including technical problems involving the user's Internet service provider, the user's web browser, or the user's host equipment, leaving users with no available corrective measures for such circumstances.
By providing the alternative of an assured filing by mail, including mailings made either by "Express Mail" or by "First Class Mail", users are enabled to make an assured filing irrespective of the nature of the particular technical difficulties which may be encountered. By eliminating the alternative of a mailed filing, the potential for the loss of a filing date is real, and is not correctable.
In addition to technical difficulties, there are the practical difficulties that can arise with communications between applicants and registrants, and their representatives, including the inability to obtain electronic signatures and the inability to obtain electronic files containing supporting documents needed for the completion of a particular filing. As an example, there can be difficulties obtaining the electronic versions of specimens needed for many of the filings that will be effected by the proposed rule changes. There can also be difficulties obtaining electronic versions of other documents needed from applicants and registrants, including signed documents, and the certified copies needed for applications filed under Section 44(e) of the Trademark Act, among other examples.
For these reasons, and others, it is respectfully submitted that the changes being proposed will likely result in circumstances involving a loss of rights that cannot be corrected, and which will leave applicants and registrants with no mechanism for making an assured filing with the U.S. Trademark Office.
While this, alone, should militate against the changes being proposed, it is also believed to be reasonable to take convenience for users of the U.S. Trademark Office into consideration. Where electronic media are conveniently and beneficially used, such media should certainly be employed by users for the efficient submission of filings to the U.S. Trademark Office. In other cases, however, where the use of electronic media is impractical, difficult or inconvenient for making a particular filing, it is respectfully suggested that users should continue to have the option to employ media other than electronic media, such as mail, for the submission of filings to the U.S. Trademark Office.
It is with all due respect that I must question the true need for changes to the rules of the U.S. Trademark Office which would eliminate filing options that can help insure against missed filings caused by the many different kinds of technical difficulties and/or practical difficulties with electronic media which can be encountered by users of the U.S. Trademark Office on a daily basis. Leaving intact the option of an assured mailing for submissions made to the U.S. Trademark Office is important for insuring that necessary filings can be made, irrespective of the conditions encountered, and would certainly be a welcomed convenience for users of the U.S. Trademark Office. Indeed, it is respectfully submitted that the reinstatement of other, formerly excluded mailing options (in particular, the availability of "Express Mail" filings for U.S. trademark/servicemark applications), and facsimile options, would still further benefit applicants and registrants in effectively transacting business with the U.S. Trademark Office.
The mailing procedures which the U.S. Trademark Office now proposes to eliminate have served applicants and registrants well for many years, without any significant burden on the U.S. Trademark Office. Such procedures are effective, efficient, and assist applicants and registrants in effectively transacting business with the U.S. Trademark Office. No valid reason has been provided for eliminating such provisions. All that has been offered is the suggestion that such provisions are no longer needed. Having demonstrated that such provisions continue to be needed, and are important for transacting business with the U.S. Trademark Office, it is respectfully requested that the U.S. Trademark Office not implement the changes in mailing practice which have been proposed.
Consideration of the foregoing is respectfully requested.
Gary M. Cohen, Esq.
Strafford Building Number Three
125 Strafford Avenue, Suite 300
Wayne, PA 19087-3318
Phone: +1 610 975-4430
Facsimile: +1 610 975-4436
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