A document mailed with an appropriate certificate of mailing, setting forth the date it was mailed, if mailed on or before the due date, will be considered timely filed even if it is received after the due date. Please note that a certificate of mailing is NOT the same as certified mail with the US Postal Service.
Wording for Certificate of Mailing
The following wording is suggested for the certificate of mailing:
CERTIFICATE OF MAILING
I hereby certify that this correspondence is being deposited with the United States Postal Service as first class mail in an envelope addressed to: Commissioner for Trademarks, P.O. Box 1451, Alexandria, Virginia 22313-1451 on the date shown below:
(Typed or Printed Name of Person Signing Certificate)
Form and Location of Certificate
The certificate of mailing must: (1) state the date of deposit in the mail, which must be a date within the set filing period (this includes the last day of the period, or the succeeding day that is not a Saturday, Sunday or Federal holiday within the District of Columbia when the last day of the period falls on a Saturday, Sunday or Federal holiday within the District of Columbia); and (2) be signed by a person who has a reasonable basis to expect the correspondence to be deposited in the mail on the date indicated. The signature of the certificate must be separate from any signature for the correspondence being deposited.
The best location for the certificate of mailing is at the beginning of the correspondence to which it pertains, typed in its entirety. The certificate of mailing should be separated from contents of the correspondence that are on the same page. Several blank lines between the contents and the certificate will suffice.
If the certificate of mailing does not fit on the correspondence to which it pertains, the certificate may be placed on a separate sheet of paper that is attached securely to the correspondence. The separate sheet must exhibit or bear a complete identification of the nature of the paper or fee as well as an identification of the application, registration and/or proceeding to which the paper pertains (including serial number or registration number). The separate sheet may be a cover letter or transmittal letter, with the certificate placed at the bottom of the letter and signed separately from the letter. If there is any doubt concerning the correspondence to which a certificate of mailing on a separate sheet relates, the USPTO will not accept the certificate.
There must be a certificate of mailing for each piece of correspondence. When correspondence for more than one application or registration is mailed in a single envelope, each item of correspondence must have its own certificate of mailing. Similarly, when more than one type of correspondence is submitted in connection with the same application, each item of correspondence must have its own certificate of mailing.
It is suggested that the certificate be signed by the applicant or the party involved in the proceeding, or by the attorney for such person. If someone else signs, it should be a responsible person in a position to know that the mail will be deposited on the date specified.
The USPTO accepts the date of deposit stated in the certificate of mailing on the basis of the statement of personal knowledge. The USPTO does not normally inspect the postmark on the envelope.
The correspondence must be deposited in the United States mail, properly addressed, and the envelope must have sufficient postage as first-class mail. Since first-class mail services of the USPS are not available in foreign countries, the certificate of mailing procedure may not be used for sending mail to the USPTO from a foreign country.
Effect of Certificate of Mailing
The date of actual receipt is the filing date of paper correspondence. 37 C.F.R. §2.195(a). The USPTO does not retain the envelopes in which material is received or record the date of the postmark.
The date of deposit indicated on the certificate of mailing is used only to determine whether the correspondence was deposited with the USPS within the filing period. Therefore, if the correspondence is actually received in the USPTO within the filing period, the certificate of mailing is ignored. If, however, the USPTO receives the correspondence after the filing period has expired, the USPTO looks to see whether a certificate of mailing was included. If no certificate is found, the correspondence is untimely.
When a paper received after the expiration of the filing period includes a signed certificate of mailing, and the date of deposit on the certificate is within the filing period, the USPTO considers the correspondence to be timely filed.
If the filing period ends on a Saturday, Sunday or Federal holiday within the District of Columbia, the correspondence is considered timely if the date of deposit on the certificate of mailing is the next succeeding day that is not a Saturday, Sunday or Federal holiday within the District of Columbia (see 37 C.F.R. §2.196 and TMEP Section 308).
Whenever it is necessary to change the effective filing date of an application (for example, when an application filed under §1(b) of the Trademark Act is amended to request registration on the Supplemental Register after submission of an allegation of use), the date of actual receipt rather than the date on the certificate is the new effective filing date.
When Certificate of Mailing Procedure May Not Be Used
The certificate of mailing procedure may be used for all trademark filings except:
- An application to register a mark;
- International applications under 37 C.F.R. §7.11;
- Subsequent designations under 37 C.F.R. §7.21;
- Responses to notices of irregularity under 37 C.F.R. §7.14;
- Requests to record changes of ownership of international registrations under 37 C.F.R. §7.23;
- Requests to record restrictions of the holder's right of disposal of an international registration, or the release of such restrictions, under 37 C.F.R. §7.24; and
- Requests for transformation under 37 C.F.R. §7.31.
37 C.F.R. §§2.197(a)(2).