From: George Spencer [mailto:gspencer@antonelli.com]
Sent: Sunday, August 26, 2012 10:53 AM
To: TM FR Notices
Subject: Docket Number PTO-T-2012-0031
To: United States Patent and Trademark Office
Re: Docket Number PTO-T-2012-0031, Request for Comments Regarding Amending the First Filing Deadline for Affidavits or Declarations of Use or Excusable Nonuse.
Concerning Question (1), eliminating deadwood is a good idea but it is difficult to know what significant impact a change in the current timing of such elimination might have.
Concerning Questions (2) and (3), the notice published in the Federal Register refers to a Small Business Administration publication which, in the section entitled "What is the survival rate of new firms", says that seven out of ten new firms survive at least years and that half last at least five years. This would indicate that 30% fail during the first two years and 20% fail during the next three years and this does not seem to be quite consistent with the reason given in the Offie's notice that "a significantly higher percentage of businesses fail during the first two years after their establishment than during the three years thereafter." It would appear, therefore that the difference between 30% and 20% is not of sufficient import to require a change in the timing for submitting a Section 8 or 71 affidavit or declaration, particularly as it is not certain that the statistics reported by the SBA relate only to small businesses, which are business having under 500 employees, or whether this particular SBA census considered businesses of all size.
What should also be kept in mind is that many businesses do not have registered trademarks or service marks, so it should be asked if the SBA census has taken into consideration whether the business had obtained trademark or service mark registrations. If so, the result of the census might be said to have a bearing on the point considered here but if not, the results would not necessarily be significant for trademark purposes. Added to this is that businesses that fail within a few years might well be businesses whose leaderships are not overly concerned with trademarks.
Again, all of the foregoing suggests that it does not appear to be in the public interest to change the current timing requirements for Section 8 and 71 affidavits and declarations, particularly as making such a change would, as is recognized in the Office's notice, require Congressional action which itself would involve substantial efforts.
Concerning Question (4), foreclosing the ability to file an affidavit or declaration that includes the allegations required by Section 15 would inevitably lead to increased administrative costs on the part of trademark registrants and the Office, which is not in the public interest. So, should the time requirements for a Section 8 or 71 affidavit or declaration be changed, some thought should be given to letting the time requirements of Section 15 be made the same as those for Section 8 and 71.
George H. Spencer, Arlington,Virginia.