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Good afternoon, thank you all
for attending today's roundtable

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on the implementation of the
Trademark Modernization Act, or

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TMA. This round table is being
recorded and will be made

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available for viewing on the
USPTO website within two to

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three weeks. If you have general
questions during the round table

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or would like to request provide
comments today, please send an

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email to TM underscore webinar

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at uspto.gov. If you would
like to submit written

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comments, please email them tmfeedback@uspto.gov. Now I

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will turn it over to
Commissioner for trademarks,

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David Gooder to provide
opening remarks. Commissioner

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Gooder.

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Thanks, Tasha, good afternoon
and welcome everyone. Thank you

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for joining us in this virtual
roundtable regarding the

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implementation of the Trademark
Modernization Act. Really, the

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first significant change in
trademark law in probably 15

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years. One year ago tomorrow, I
was sworn in as Commissioner for

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trademarks, and although I've
been a trademark lawyer for my

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entire career as a lawyer in
this past year, I've seen the

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trademark ecosystem from many
new and different perspectives.

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One of those is the damage being
done to our trademark register

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and the need to better protect
it for not only trademark

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owners, but TM practitioners as
well. I know we're all in

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agreement that the register must
be accurate in order to be

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really useful to establish
companies as well as startups.

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And entrepreneurs, the critical
business and branding decisions

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that they may rely on that
unfortunately our register is

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being plagued by bogus claims of
use and Deadwood registration.

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Over the past few years, we've
been busy with multiple

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initiatives to address these
concerns and to increase the

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accuracy of the register. Like
most countries, we started

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requiring foreign applicants to 
have US counsel when filing

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submission. We increased
scrutiny scrutiny of the proof

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of use required to support
registration in both

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examination. And post
registration processes and more

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than two years ago we launched a
special task force that not only

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investigate suspicious behavior
and troublesome trends, but goes

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after those attempting to cause

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it. And we're pursuing login
requirements that will increase

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our database security in the
future and allow us to better

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trace bad actors in our system.

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Well, these are all strong
weapons in our Arsenal. Will

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soon have a new tool and it's
called the Trademark

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Modernization Act for the USPTO.
The teammate does the following

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things. First, it codifies the
letter of protest procedure

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designed to allow third parties
to submit evidence during the

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examination of an application as
an in such as claims of use in

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an application that the
petitioner believes are

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inaccurate. Secondly, the
legislation gives the US PTO the

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authority to shorten response

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deadlines. So that suspicious
applications could be handled

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and disposed of more quickly.

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3rd, the legislation provides
new, non use cancellation

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mechanisms, expungement, and
re examination that allow

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registrations that are not in
use as required to be

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challenged either by third
parties or by the director on

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their own initiative. The good
news is that the TMA provides

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a number of useful tools to
protect and improve the

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integrity of the trademark
register. The challenging news

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is that we only have one year
to get it implemented and we

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want to accomplish out in a
way that best serves the

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entire trademark community.

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And it's with that in mind that
we are delighted to have this

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opportunity today to get your
feedback on the TMA. Later this

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spring, we will publish a notice
of proposed Rulemaking to

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implement the provisions of the

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Act. And as we embark on this
path, we want to ensure that we

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consider all of your input,
which is why we're here today.

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Please know that your input and
feedback will be carefully

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considered and before we move
ahead today, I'd just like to

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thank all of you. The
participants that have taken

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time to join us today, and
especially those who have

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prepared comments for today's
event. I'd like to thank our

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speakers from the office, Amy
Cotton, acting Deputy

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Commissioner for Trademark
examination Policy, and Jerry

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Rogers, Chief Administrative
judge of the TTAB

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and everyone who work behind the
scenes to make this roundtable

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happen. And to all of you thank
you for taking time out of your

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busy schedule to join us today.
Your contributions will go a

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long way to helping make the TMA
the best it can be in. To ensure

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that the US trademark register
remains at the forefront of

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promoting IP accuracy and
integrity throughout the world.

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Thank you.

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And now I will turn it
over to Amy, I believe.

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Thank you Dave.

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I need this. The slides
given over me.

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There we go.

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Thank you so much everyone
for coming today. I wanted to

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share that the office is
appreciation for all the

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input that do you have given
us and will continue to give

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us as we develop this rule
package. Dave did set the

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stage a bit for us but I
wanted to go into that a

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little bit more. The broader
context of why the register

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protection initiatives that
the USPTO is pursuing.

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In recent years, the PTO has
received an increasing number of

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trademark filings with
questionable, questionable and

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sometimes bogus claims of use.

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Use matters because the US
trademark requires the

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trademarks be used on goods or
in connection with services as a

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condition for obtaining and
maintaining the US registration.

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Furthermore, this use
requirement ensures that the

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Federal Trademark Register
reflects actual marketplace use

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of the trademarks that allows
entrepreneurs, innovators and

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brand owners to make better,
better marketing and branding

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decisions. Bogus use claims
devalue the usefulness of the

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Register for businesses.

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Registrations that are not
accurate or invalid in their

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subject to challenge by
third parties.

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But until they are challenged,
these invalid registrations take

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up space on the trademark

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register. Creating clearance
problems for you and increasing

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the cost of doing business.

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Registrations procured through
false claims of use or other

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improper behaviors. Call into
question, not just the accuracy

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of the US trademark register,
but the integrity of the

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register and those
registrations. The USPTO issues.

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If the USPTO issues
registrations at lack integrity,

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the value of those registrations

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diminishes. Likewise, the USPTO 
loses the trust of our customers

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when they receive scams and
solicitations that trick them

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into paying for services they
don't need or never get.

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So we have been working on
register protection initiatives

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for quite some time. Our goal is
to improve the accuracy of the

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sub missions that we receive.

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Accurate submissions allow us to
increase examination efficiency

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and get you your registrations

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faster. Accurate submissions
allow us to issue accurate

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registrations that hold up
better against challenges in

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court. Sometimes inaccurate
submissions are generated

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through mistake or
misunderstanding of US laws or

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rules, other times inaccurate
register submissions are due to

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bad intent or bad behavior.

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So to improve the accuracy, the
submissions we have to detur bad

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behavior. And here are some of
the tools we have employed to

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achieve those goals. As noted by

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Dave. First, the Special task
Forces that group that's

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responsible for investigating
improper behaviors and scams and

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evaluating whether sanctions are
necessary to address them.

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Log in now is mandatory for
anyone filing electronic form

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that that allows us to better
track filing behaviors. There

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are two more forthcoming
phases. Identity proofing in

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role based access which will
further further increase

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database security.

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On scams we have limited legal
authority to take action against

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scans and solicitations, so
we're really focused on

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education, an outreach to alert
our customers of scams and to

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share information with law
enforcement agencies

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investigating bad actors.

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As for the post
registration audit program

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that's been in place since
2012, it clearly shows that

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registrants are
consistently filing

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inaccurate use claims in
their maintenance filings.

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To address this, USPTO is now
charging $250 per class

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deletion fee every time a
registrant files a maintenance

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filing that, upon examination
or audit is found to be

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deficient as to use claims.

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You all know about the US
Council rule. We followed the

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practice of most other countries
and last year we started

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requiring foreign domiciliary's
to be represented by US license

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attorney. This rule is designed
to improve the quality of

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submissions by requiring the use
of attorneys who are bound by

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ethical rules to follow USPTO 
rules of practice and their own

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State Bar codes of conduct.

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As Dave noted, we've increased
specimen scrutiny, specimens of

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use, and we've issued guidance
designed to give our examining

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attorneys more power to issue
specimen refusals. When the

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specimens on their face raise
questions about their

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legitimacy. We are also working
to refine and implement it tools

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to assist with identifying
doctored or fake specimens.

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Now Lastly, as Dave noted, the
TMA provides additional tools to

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advance our strategy of

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increasing act. See of
our trademark register.

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About two years ago when we were
facing a surge of applications

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with sketchy specimens, Congress
asked us how they could help us

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to respond. We asked for these
tools that are in the TNA. First

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we asked if the letter of
protest procedure could be

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codified so that we could have
clear authority to charge a fee.

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And to cover the cost of the

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procedure. Next we asked for
authority to shorten the six

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months response period so we
could move suspicious

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applications through the system

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faster. Lastly, we asked for non
use cancellation procedures that

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were faster and cheaper than
trademark trial and appeal board

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proceedings that weren't were
not a default judgment.

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So first with letters of
protest. This procedure of

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course has been in place for
years, and all the TMA does is

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quantify that practice with a

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few minor tweaks. Typically,
third parties cannot intervene

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in someone elses trademark
application without filing an

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opposition at the TTAB. The
letter of protest procedure

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allows third parties to send
evidence to the USPTO regarding

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another application. We review
that evidence and determine

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whether the evidence is relevant
to a ground of refusal and if

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so, we forward that evidence to
the examining attorney. This is

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a way for third parties to bring
something to your attention that

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we might otherwise have missed
or we don't have access to.

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The tweaks that I spoke of exist
to the existing letter. Protest

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procedures are the legislation
authorizes us to charge a fee

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which is now $50. Second,
Congress imposed a two month

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time limit for us to send the
relevant evidence to the

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examining attorney. Everything
else remains exactly as it has

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been for years, as outlined in
the Trademark Manual of

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Examining Procedure.

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Next we have the flexible

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response period. Typically, as
you know, applicants have six

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months to respond to an office
action. Our data suggests that

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some applicants take advantage
of the full six months before

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responding, but many others move
quickly to respond to the office

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action. The full six month time
period may be reasonable and

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even necessary for complex
office action. However, for

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responses to office actions with
fewer refusals or simple

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requirements like US Council,
six months is too long that lag

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time means that applications are
taking up space in our system

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longer than they really need to.

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The TMA authority would allow us
to shorten response times to

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increase examination efficiency
and decrease pendency.

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How short should the time
periods be and when shorter

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periods would be offered or
topics to be determined in

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our rulemaking process and
we welcome your input on

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this question.

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The GMA includes two new
mechanisms for getting Deadwood

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off the register. The key things
to remember about these new

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proceedings or that number one
they're not abandonment

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proceeding, so intent to resume,
use or commence uses not

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relevant. Two, they are non use
cancellation proceedings where

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use was required as of a certain
date, and there's evidence that

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the mark was not in use as of

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that date. #3, these proceedings
are before the director without

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having to file a petition
petition to cancel at the board.

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The goal, of course, is to
create processes that are

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potentially quicker and cheaper
than a board proceeding that's

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not likely to result in a
default judgment. That is, there

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are two targets of these
proceedings. Number one, those

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marks that were never used.

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And to those were not used
as of the relevant date.

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00:13:24,230 --> 00:13:26,860
Further, you should know the
expungement claim will also be

237
00:13:26,860 --> 00:13:30,016
available at that ETA B as a new
section 14 ground for

238
00:13:30,016 --> 00:13:32,646
cancellation of registrations
where the mark was never used in

239
00:13:32,646 --> 00:13:35,942
Commerce. This claim does not
supplant or replace existing

240
00:13:35,942 --> 00:13:38,932
nonuse claims at the board and
expungement claim can be

241
00:13:38,932 --> 00:13:41,025
combined with other claims,
including nonuse or

242
00:13:41,025 --> 00:13:43,417
abandonment claims in
petitions to cancel at the

243
00:13:43,417 --> 00:13:43,716
board.

244
00:13:47,440 --> 00:13:50,531
To start the proceeding before
the director, a third party or

245
00:13:50,531 --> 00:13:53,060
the director must submit a
request to Institute an

246
00:13:53,060 --> 00:13:53,903
expungement or reexamination

247
00:13:53,903 --> 00:13:57,090
proceeding. The requests can
cover some or all of the goods

248
00:13:57,090 --> 00:13:58,180
or services in a registration.

249
00:13:58,880 --> 00:14:01,448
And those rules, the rules that
we're working on will need to

250
00:14:01,448 --> 00:14:03,802
address in more depth what
would be required in such a

251
00:14:03,802 --> 00:14:06,156
request. But here are the
basics as laid out in the

252
00:14:06,156 --> 00:14:06,370
statute.

253
00:14:10,770 --> 00:14:13,803
Under the statute, any person
can request proceedings be

254
00:14:13,803 --> 00:14:16,499
instituted. This means that
there's no standing requirement.

255
00:14:17,150 --> 00:14:19,742
The director may also request
proceedings to be instituted

256
00:14:19,742 --> 00:14:23,052
against a registration.
Expungement proceedings can be

257
00:14:23,052 --> 00:14:26,932
requested as to use based
registrations as well as those

258
00:14:26,932 --> 00:14:30,036
registrations under issued under
Section 44 or 66.

259
00:14:30,730 --> 00:14:34,195
Reexamination proceedings can be
requested as to use based

260
00:14:34,195 --> 00:14:38,045
registrations where use was
required either at filing or at

261
00:14:38,045 --> 00:14:39,200
the SOUAU stage.

262
00:14:40,360 --> 00:14:43,363
If a if a registrant submitted
specimens to us that were

263
00:14:43,363 --> 00:14:46,093
accepted but based on other
evidence should not have been

264
00:14:46,093 --> 00:14:48,823
a third party or the director
can request reexamination of

265
00:14:48,823 --> 00:14:49,915
that claim of use.

266
00:14:51,640 --> 00:14:55,336
Under the statute, excusable
Nonuse is only available as to a

267
00:14:55,336 --> 00:14:58,360
Section 44 or 66. Registration
in an expungement proceding

268
00:14:58,360 --> 00:15:01,720
excusable nonuse is not
available as a defense in a

269
00:15:01,720 --> 00:15:04,072
Section 1 expungement proceeding
or reexamination proceeding.

270
00:15:04,072 --> 00:15:08,440
This is because the USPTO would
not have accepted a claim of the

271
00:15:08,440 --> 00:15:12,472
excusable nonuse as of the date
of application and a Section 1

272
00:15:12,472 --> 00:15:15,832
application or the data. The
statement of User Amendment to

273
00:15:15,832 --> 00:15:19,192
allege use in a Section 1B
application, an expungement or

274
00:15:19,192 --> 00:15:22,216
examination proceeding is
looking back as to whether that

275
00:15:22,216 --> 00:15:25,054
claim. That use claim during the
application examination process

276
00:15:25,054 --> 00:15:28,518
was accurate. Excusable Nonuse
would not have been accepted

277
00:15:28,518 --> 00:15:32,046
then. It cannot be relied upon
by the restaurant now to to

278
00:15:32,046 --> 00:15:35,280
defeat against the claim of
non use as there was relevant

279
00:15:35,280 --> 00:15:37,338
dates in an expungement or
reexamination proceeding.

280
00:15:43,960 --> 00:15:46,444
The request for institution of
these proceedings can only

281
00:15:46,444 --> 00:15:49,480
happen during certain windows of
time. This is a quiet title

282
00:15:49,480 --> 00:15:50,584
provision and designed to

283
00:15:50,584 --> 00:15:54,386
prevent abuse. For expungement
that window is year three to

284
00:15:54,386 --> 00:15:58,093
your 10 post registration for
exam, that window is from year

285
00:15:58,093 --> 00:15:59,778
zero to your five post

286
00:15:59,778 --> 00:16:03,849
registration. However, the TMA
provides it for the first three

287
00:16:03,849 --> 00:16:06,497
years after enactment. Any
registration, regardless of how

288
00:16:06,497 --> 00:16:10,138
old it is, maybe subjects to
request of institution for an

289
00:16:10,138 --> 00:16:12,836
expungement proceeding.
Where the registrar cannot

290
00:16:12,836 --> 00:16:14,929
establish use of the
challenge, goods or

291
00:16:14,929 --> 00:16:17,321
services those goods or
services will be cancelled

292
00:16:17,321 --> 00:16:19,713
from the registration in
whole or in part.

293
00:16:22,110 --> 00:16:24,214
The registrant may appeal any
resulting cancellation from

294
00:16:24,214 --> 00:16:27,370
the director to the TTV and
then to the Court of Appeals

295
00:16:27,370 --> 00:16:28,422
for the Federal Circuit.

296
00:16:29,500 --> 00:16:32,460
As for abuse provisions, the
Statute provides that once a

297
00:16:32,460 --> 00:16:35,124
good or service is attacked,
is attacked and survives

298
00:16:35,124 --> 00:16:37,788
because use was established.
Those goods or services can

299
00:16:37,788 --> 00:16:38,972
ever be attacked again.

300
00:16:42,010 --> 00:16:45,780
We are drafting rules to design
these proceedings right now.

301
00:16:46,420 --> 00:16:49,808
While we're looking for feedback
feedback on any aspect of TMI

302
00:16:49,808 --> 00:16:51,964
implementation, we are
especially interested to hear

303
00:16:51,964 --> 00:16:55,352
from you on the issues listed.
Heater, what should constitute a

304
00:16:55,352 --> 00:16:57,816
reasonable investigation? What
are the general types of

305
00:16:57,816 --> 00:16:59,356
evidence that could support a

306
00:16:59,356 --> 00:17:03,141
prime aphasia case? What should
the set response an extension

307
00:17:03,141 --> 00:17:07,342
times periods be? What limits
should be set on the number of

308
00:17:07,342 --> 00:17:08,176
petitions for particular

309
00:17:08,176 --> 00:17:11,242
registration? How should an
expungement and reexamination

310
00:17:11,242 --> 00:17:14,138
proceedings? How should they
relate to other proceedings

311
00:17:14,138 --> 00:17:15,948
concerning that same
trademark registration?

312
00:17:19,130 --> 00:17:22,540
As Dave noted, we have one year
to implement. These proceedings

313
00:17:22,540 --> 00:17:26,260
were working on a draft rule
package and will be sending it

314
00:17:26,260 --> 00:17:28,740
through clearance within the
administration in the coming

315
00:17:28,740 --> 00:17:32,150
month. We will issue the notice
of Proposed rulemaking. The NPRM

316
00:17:32,150 --> 00:17:33,390
in the spring on

317
00:17:33,390 --> 00:17:36,560
thefederalregister.gov site.
Once the NPRM issues, we will

318
00:17:36,560 --> 00:17:39,660
hold a public roundtable to
collect feedback on the actual

319
00:17:39,660 --> 00:17:41,210
text of the proposed rules.

320
00:17:42,020 --> 00:17:45,026
All public comments should be
submitted in writing to

321
00:17:45,026 --> 00:17:48,032
thefederalregister.gov site at
that time. Of course, once we

322
00:17:48,032 --> 00:17:51,038
receive those comments, we
will assimilate and respond to

323
00:17:51,038 --> 00:17:54,378
those comments in the final
rule. That final rule will

324
00:17:54,378 --> 00:17:55,380
publish in December.

325
00:17:56,630 --> 00:17:59,542
We are required to implement
the expungement in

326
00:17:59,542 --> 00:18:02,090
reexamination proceedings by
December 27th, 2021. The

327
00:18:02,090 --> 00:18:05,366
letter of protest procedures
are also required to be

328
00:18:05,366 --> 00:18:09,006
implemented by that date. But
of course, those are actually

329
00:18:09,006 --> 00:18:12,282
already implemented in
practice for many years and by

330
00:18:12,282 --> 00:18:16,650
rule as of this past January
2, 2021. In the trademark fee

331
00:18:16,650 --> 00:18:17,378
adjustment rule.

332
00:18:18,740 --> 00:18:21,428
The implementation of the
flexible response period does

333
00:18:21,428 --> 00:18:23,780
not have a deadline for
implementation. Nonetheless,

334
00:18:23,780 --> 00:18:26,804
in light of the surge of
applications we're currently

335
00:18:26,804 --> 00:18:29,156
experiencing, we are
interested in pursuing the

336
00:18:29,156 --> 00:18:32,516
flexibility inherent in the
TMI statute so that we can

337
00:18:32,516 --> 00:18:33,860
address efficiencies in
examination.

338
00:18:36,680 --> 00:18:40,740
As for USPTO resources, we have
a team, a web page that includes

339
00:18:40,740 --> 00:18:44,220
links to the legislation and an
email box for your feedback on

340
00:18:44,220 --> 00:18:47,540
TMA implementation. We want to
hear from you through that

341
00:18:47,540 --> 00:18:50,345
through that email box. Once we
receive input, we were putting

342
00:18:50,345 --> 00:18:53,405
all stakeholder input on our web
page so you can review the

343
00:18:53,405 --> 00:18:55,955
suggestions that have already
been made and we're using that

344
00:18:55,955 --> 00:18:59,015
feedback of feedback to shape
the rule package as we draft it

345
00:18:59,015 --> 00:19:02,422
right now. Once the notice of
proposed rulemaking issues, we

346
00:19:02,422 --> 00:19:05,262
will do this in this whole
consultation process again to

347
00:19:05,262 --> 00:19:08,670
see what you think of what we
drafted based on your input

348
00:19:08,670 --> 00:19:09,522
this time around.

349
00:19:11,800 --> 00:19:15,089
As for today, we're delighted
to have so many speakers share

350
00:19:15,089 --> 00:19:18,378
their views. We want to move
forward to that right now.

351
00:19:18,378 --> 00:19:21,667
Keep in mind, each speaker
will have 5 minutes. Then when

352
00:19:21,667 --> 00:19:24,657
there's one minute left, a
notice will appear on the

353
00:19:24,657 --> 00:19:27,946
screen. Please wrap up. So
then we can meet next move.

354
00:19:27,946 --> 00:19:29,441
Move to the next speaker.

355
00:19:30,470 --> 00:19:31,160
And with that.

356
00:19:32,580 --> 00:19:36,120
I'd like to move to the first
speaker to give remarks today.

357
00:19:37,000 --> 00:19:38,200
Which is.

358
00:19:39,470 --> 00:19:41,170
Ted Davis, I believe.

359
00:19:44,430 --> 00:19:48,190
Mr. Davis, you should be being
elevated to a panelist.

360
00:20:01,680 --> 00:20:02,590
Student self.

361
00:20:04,160 --> 00:20:07,193
Hi this is Ted Davis with
Kilpatrick Townsend. I

362
00:20:07,193 --> 00:20:10,226
appreciate the opportunity to
comment today. I have two

363
00:20:10,226 --> 00:20:13,596
personal concerns regarding the
rule making the first of which

364
00:20:13,596 --> 00:20:16,966
is that the statute itself
either defines the response of

365
00:20:16,966 --> 00:20:20,336
obligation of a registrant
targeted by one of the new

366
00:20:20,336 --> 00:20:23,706
proceedings. Nor directs the
Office 2 to engage in rulemaking

367
00:20:23,706 --> 00:20:27,750
on the issue. This issue has
been raised by some of the

368
00:20:27,750 --> 00:20:29,772
intellectual property
constituencies and I therefore

369
00:20:29,772 --> 00:20:33,816
won't belabor it here except to
note that it is arisen with

370
00:20:33,816 --> 00:20:36,512
increasing frequency in my
discussions about the TMI.

371
00:20:36,580 --> 00:20:41,416
With our firm's clients and just
to give you 2 examples that have

372
00:20:41,416 --> 00:20:45,136
arisen, the first is whether a
sworn verification of a

373
00:20:45,136 --> 00:20:47,740
responsive showing is necessary.
Another's weather everything.

374
00:20:47,740 --> 00:20:51,088
The registrants submitted as
part of, say, a secondary

375
00:20:51,088 --> 00:20:54,064
meeting showing will
automatically be a matter of

376
00:20:54,064 --> 00:20:58,528
record, as would be the case in
an ex parte proceeding. Or

377
00:20:58,528 --> 00:21:01,504
Alternatively, is all that
matters. What the registrants

378
00:21:01,504 --> 00:21:05,596
submits in the course of the
preceding, the nature of the

379
00:21:05,596 --> 00:21:08,944
registrants responses showing is
significant enough of an issue

380
00:21:08,944 --> 00:21:12,744
that registrants. Should not
have to wait until the case law

381
00:21:12,744 --> 00:21:16,004
gives them definite answers,
perhaps years from now. And I

382
00:21:16,004 --> 00:21:17,634
therefore hope the rules will

383
00:21:17,634 --> 00:21:21,650
preemptively address it. The
second issue cuts in the

384
00:21:21,650 --> 00:21:24,370
opposite direction, and it
relates to the potential

385
00:21:24,370 --> 00:21:27,770
consequences of a registrant
failing to carry its burden in

386
00:21:27,770 --> 00:21:30,830
one of the two ex parte
proceedings, the statute

387
00:21:30,830 --> 00:21:34,230
contemplates the director will
Cherry pick a problem good or

388
00:21:34,230 --> 00:21:37,970
service out of the registration
in question. But if that's the

389
00:21:37,970 --> 00:21:41,370
sole con cequence, the offices
experienced may well be similar

390
00:21:41,370 --> 00:21:44,770
to what happened under the
original iteration of the Post

391
00:21:44,770 --> 00:21:47,490
registration Audit program,
which is that registrants who

392
00:21:47,490 --> 00:21:50,890
know they don't have use will
simply ignore the proceedings.

393
00:21:51,360 --> 00:21:55,404
And if as many of us have heard
from the House subcommittee

394
00:21:55,404 --> 00:21:58,774
staffers that the goal is to
change registrants behavior on

395
00:21:58,774 --> 00:22:02,144
the front end, it seems that
something more should be

396
00:22:02,144 --> 00:22:05,177
required of a registrat and the
circumstances. Perhaps, for

397
00:22:05,177 --> 00:22:08,884
example, a fee to keep the
remainder of the registration up

398
00:22:08,884 --> 00:22:12,254
and running again. Thank you for
the opportunity to comment.

399
00:22:17,950 --> 00:22:21,298
Thank you very much. I
appreciate your comments. Next

400
00:22:21,298 --> 00:22:25,762
we have Allison Rickets an I
believe she has slides that we

401
00:22:25,762 --> 00:22:27,622
will be projecting as well.

402
00:22:29,190 --> 00:22:32,470
I'm Allison Strickland Ricketts.
I'm a partner with cross sell

403
00:22:32,470 --> 00:22:35,750
Nick and I appreciate the
opportunity to comment on the

404
00:22:35,750 --> 00:22:38,374
planned implementation of the
TMA next slide, please.

405
00:22:42,100 --> 00:22:45,349
My questions relate largely
to how the new proceedings

406
00:22:45,349 --> 00:22:48,237
will be integrated with
existing proceedings. So, for

407
00:22:48,237 --> 00:22:51,847
example, once a actually
there was a slide before this

408
00:22:51,847 --> 00:22:53,652
one, or there should be.

409
00:22:55,260 --> 00:22:56,050
Man.

410
00:22:58,260 --> 00:23:03,395
This should be slide #3. There
we go. So once a proceeding is

411
00:23:03,395 --> 00:23:07,740
commenced will registrants be
able to file a Section 7 request

412
00:23:07,740 --> 00:23:12,480
to amend their registration such
as to delete goods at issue in

413
00:23:12,480 --> 00:23:17,615
the preceding and if so, will
the fee for Section 7, that is,

414
00:23:17,615 --> 00:23:21,960
only deleting classes, goods and
services be waived, as was the

415
00:23:21,960 --> 00:23:26,305
new rule announced in the recent
fee setting that went into

416
00:23:26,305 --> 00:23:28,280
effect on January 2, 2021.

417
00:23:28,340 --> 00:23:29,258
Next slide, please.

418
00:23:33,050 --> 00:23:36,236
Similar question about filing a
voluntary surrender. Wants a

419
00:23:36,236 --> 00:23:40,130
proceeding is commenced, will or
registrant be able to file a

420
00:23:40,130 --> 00:23:43,316
voluntary surrender of the
registration or portion of the

421
00:23:43,316 --> 00:23:47,564
registration you know, such as
to delete goods at issue in the

422
00:23:47,564 --> 00:23:51,104
proceeding. In my view, this
should be permitted since the

423
00:23:51,104 --> 00:23:54,644
animating purpose of the new
provisions is to remove Deadwood

424
00:23:54,644 --> 00:23:58,184
from the register. I think that
perhaps even the notice

425
00:23:58,184 --> 00:24:01,016
notifying a registrant of
implementation of the preceding

426
00:24:01,016 --> 00:24:04,202
might inform them of these
avenues that are available.

427
00:24:04,300 --> 00:24:08,356
To go ahead and respond to the
notice by deleting the goods

428
00:24:08,356 --> 00:24:12,750
that are not in use, I would
just observe to that right now

429
00:24:12,750 --> 00:24:16,468
there is no obligation on
section 44 and 66 registrants to

430
00:24:16,468 --> 00:24:20,524
delete anything until the time
comes to file the Section 8 or

431
00:24:20,524 --> 00:24:24,580
71 at between the 5th and 6th
year anniversary, but it may

432
00:24:24,580 --> 00:24:29,312
well be that some of them would
be willing to do so at an

433
00:24:29,312 --> 00:24:32,692
earlier time if such a
proceeding is commenced. So I

434
00:24:32,692 --> 00:24:34,720
think that they should be given

435
00:24:34,720 --> 00:24:38,106
that opportunity. To do so, but
perhaps less expensive, will

436
00:24:38,106 --> 00:24:41,483
certainly less expense to them,
and less expense to the office

437
00:24:41,483 --> 00:24:45,167
who are evaluating all the
evidence of use or non use. It

438
00:24:45,167 --> 00:24:48,544
might be provided, and in the
event that registrants opt to

439
00:24:48,544 --> 00:24:52,393
take advantage of. Filing of
Section 7 or a voluntary

440
00:24:52,393 --> 00:24:55,025
surrender and resolving the
proceeding in that manner.

441
00:24:55,025 --> 00:24:58,644
Might the petitioner receive
a refund of part of its fee

442
00:24:58,644 --> 00:25:02,592
since the office won't have
to do the second half of the

443
00:25:02,592 --> 00:25:03,908
work. Next slide please.

444
00:25:07,340 --> 00:25:11,480
The next question relates to
timing. When a Section 8 or 71

445
00:25:11,480 --> 00:25:14,585
declaration comes do during the
pendency of an expungement

446
00:25:14,585 --> 00:25:18,725
proceding 'cause those can be
between years 3 and 10. I assume

447
00:25:18,725 --> 00:25:22,520
that the registrant will be
still allowed to file it Section

448
00:25:22,520 --> 00:25:26,315
8 or 71, which is required in
order to maintain its

449
00:25:26,315 --> 00:25:30,110
registration, but perhaps it
would be good if the rules made

450
00:25:30,110 --> 00:25:33,560
clear that you know the
registrant is still afforded an

451
00:25:33,560 --> 00:25:37,700
opportunity to make that to make
those filings an, I would assume

452
00:25:37,700 --> 00:25:41,802
to. That they will be allowed to
delete goods if they're filing a

453
00:25:41,802 --> 00:25:45,474
Section 8 or 71, just as they
would in ordinary course, even

454
00:25:45,474 --> 00:25:47,004
if there is a proceeding.

455
00:25:48,610 --> 00:25:51,004
An expungement proceding
that's that's open against

456
00:25:51,004 --> 00:25:55,108
them. And then, if all the
goods and services at issue in

457
00:25:55,108 --> 00:25:59,212
the preceding or deleted as
result of a Section 8 or 71

458
00:25:59,212 --> 00:26:02,290
filing, what will be the
disposition of the expungement

459
00:26:02,290 --> 00:26:03,658
proceding next slide please.

460
00:26:05,740 --> 00:26:09,830
Likewise, if a registration is
involved in an Inter partes

461
00:26:09,830 --> 00:26:13,511
proceeding at the board or
Federal Court litigation, that

462
00:26:13,511 --> 00:26:18,010
could result in cancellation of
the registration in whole or in

463
00:26:18,010 --> 00:26:21,691
part can expungement and RE exam
proceedings be instituted

464
00:26:21,691 --> 00:26:25,781
nonetheless? Does it depend on
what the basis for the

465
00:26:25,781 --> 00:26:29,462
cancellation is? IE likelihood
of confusion might be different

466
00:26:29,462 --> 00:26:32,734
than if the preceding actually
directly addresses allegations

467
00:26:32,734 --> 00:26:34,370
of lack of use.

468
00:26:35,070 --> 00:26:39,184
Or will it proceedings in that
event, perhaps we suspended like

469
00:26:39,184 --> 00:26:42,176
GTAV cases sometimes are
suspended awaiting the outcome

470
00:26:42,176 --> 00:26:45,168
of a federal court litigation
next slide, please.

471
00:26:47,190 --> 00:26:50,187
With regard to the flexible
response period, I actually

472
00:26:50,187 --> 00:26:53,517
would urge you to delay
implementation of rules to alter

473
00:26:53,517 --> 00:26:57,180
changes to existing response
period. There's a lot of work to

474
00:26:57,180 --> 00:27:00,510
be done to meet the statutory
requirement to implement the

475
00:27:00,510 --> 00:27:04,173
expungement Anri exam by
December 27. And this is true on

476
00:27:04,173 --> 00:27:07,836
the policy side in the
rulemaking site as well as on

477
00:27:07,836 --> 00:27:11,166
the back end of creating systems
to provide this new

478
00:27:11,166 --> 00:27:14,496
functionality. And I just heard
you announced that you're also

479
00:27:14,496 --> 00:27:17,493
still planning to try to
introduce some of the.

480
00:27:17,590 --> 00:27:21,070
Other security features with
logins and role based access to

481
00:27:21,070 --> 00:27:25,942
the system. That sounds like a
lot going on to me to try to

482
00:27:25,942 --> 00:27:29,422
implement, and I think that
since you aren't obligated to

483
00:27:29,422 --> 00:27:33,250
change the response periods, I
think it would just produce a

484
00:27:33,250 --> 00:27:38,470
lot of extra work at a time when
you need to be focused on the

485
00:27:38,470 --> 00:27:43,342
things that have to be done in
time. I guess if you want to

486
00:27:43,342 --> 00:27:47,170
make shorter response periods
for simply in cases where non US

487
00:27:47,170 --> 00:27:48,214
domiciled entities haven't.

488
00:27:50,010 --> 00:27:53,090
Appointed under Turney, that
might be one discrete case where

489
00:27:53,090 --> 00:27:56,170
it would be warranted an
worthwhile, but as a larger

490
00:27:56,170 --> 00:27:58,326
issue I would. I would urge you

491
00:27:58,326 --> 00:28:01,060
to delay that. Thank you
very much.

492
00:28:05,710 --> 00:28:07,370
Thank you Allison. I appreciate

493
00:28:07,370 --> 00:28:11,627
your comments. Next we have
Michael Chiappetta, Mr Cooper.

494
00:28:11,627 --> 00:28:13,682
Yes, can you hear me?

495
00:28:15,830 --> 00:28:22,270
Yes, we can. OK great yes I so
my name is Mike Chupeta. I'm

496
00:28:22,270 --> 00:28:25,950
from practical. My question
concerns the new cancellation

497
00:28:25,950 --> 00:28:31,930
claim based on non use. Section
14 has been amended to allow a

498
00:28:31,930 --> 00:28:36,530
cancellation claim based on
complete non use and that claim

499
00:28:36,530 --> 00:28:41,130
may not be asserted until three
years after the registration

500
00:28:41,130 --> 00:28:43,430
issues. The step story language

501
00:28:43,430 --> 00:28:47,740
also says. That nothing in this
provision shall be construed to

502
00:28:47,740 --> 00:28:51,070
limit the timing applicable to
any other grounds for

503
00:28:51,070 --> 00:28:55,918
cancellation. That the new
claim, I think, can fairly be

504
00:28:55,918 --> 00:29:01,102
characterized as a non use claim
and seems to establish this firm

505
00:29:01,102 --> 00:29:05,854
three year period during which
one can assert it, but the

506
00:29:05,854 --> 00:29:09,742
traditional avoid ABBA Nishio
Nonuse claim could be asserted

507
00:29:09,742 --> 00:29:13,630
within at anytime within five
years after registration. The

508
00:29:13,630 --> 00:29:17,518
question is whether the
traditional void AB initio non

509
00:29:17,518 --> 00:29:21,406
use claim qualifies as another
ground for cancellation such

510
00:29:21,406 --> 00:29:23,134
that it is unaffected.

511
00:29:23,840 --> 00:29:28,150
So can I assert that traditional
void abbonizio Nonuse claim

512
00:29:28,150 --> 00:29:33,322
during the first three years of
registration? Now I know, I just

513
00:29:33,322 --> 00:29:38,063
note that Amy indicated in her
opening remarks that this claim

514
00:29:38,063 --> 00:29:42,804
will not replace existing Nonuse
claims, but I suppose my concern

515
00:29:42,804 --> 00:29:47,976
is that if this is not clarified
in the regulations, a defendant

516
00:29:47,976 --> 00:29:52,717
inevitably will argue that avoid
Ave Seal claimed is subject to

517
00:29:52,717 --> 00:29:54,441
the three year limitation.

518
00:29:54,810 --> 00:29:58,905
And I just want to avoid this
situation where the TTB has two.

519
00:29:58,905 --> 00:30:00,165
TTV has to interpret.

520
00:30:00,420 --> 00:30:04,347
The statutory intent, and so I
just thought this is something

521
00:30:04,347 --> 00:30:07,560
that should be flagged and
perhaps clarified in the

522
00:30:07,560 --> 00:30:11,487
regulations when they when they
are issued. I just also know

523
00:30:11,487 --> 00:30:12,558
that this if.

524
00:30:13,490 --> 00:30:16,900
If the Void app initial claims
still stands, assuming it does,

525
00:30:16,900 --> 00:30:20,310
it seems to render the three
year limitation in the statutory

526
00:30:20,310 --> 00:30:23,410
language fairly meaningless. I
mean, I can't challenge a one

527
00:30:23,410 --> 00:30:26,510
year old registration on the
ground that it's never been

528
00:30:26,510 --> 00:30:30,850
used, but I can assert a claim
that it wasn't. It wasn't in use

529
00:30:30,850 --> 00:30:34,880
as of the application filing
date, or as of the date of an

530
00:30:34,880 --> 00:30:38,290
allegation of use was filed. If
it's an intent to use

531
00:30:38,290 --> 00:30:41,080
application, this just seems
counter intuitive to me, but

532
00:30:41,080 --> 00:30:42,940
that's all I have to say.

533
00:30:47,690 --> 00:30:51,620
Thank you so much Mike.
Appreciate that next speaker we

534
00:30:51,620 --> 00:30:52,799
have Eric Perot.

535
00:30:54,400 --> 00:30:55,980
Mr Pro, you're on.

536
00:30:57,940 --> 00:30:58,300
Great.

537
00:30:59,990 --> 00:31:04,262
I can hear you excellent and I
really appreciate the USP to

538
00:31:04,262 --> 00:31:08,178
providing this forum to discuss
the thoughts on the TMA may

539
00:31:08,178 --> 00:31:12,094
partner with Bourbon Perot in
Washington DC and I do think

540
00:31:12,094 --> 00:31:16,010
that there's been no bigger
threat to the integrity of the

541
00:31:16,010 --> 00:31:18,858
US trademark registry then this
influx of fraudulent

542
00:31:18,858 --> 00:31:22,774
applications, and we've seen it
for the past at least four

543
00:31:22,774 --> 00:31:27,046
years. And the problem continues
to grow for a little bit of

544
00:31:27,046 --> 00:31:29,538
context. That kind of
applications that the

545
00:31:29,538 --> 00:31:31,674
expungement and reexamination
proceeding would pre

546
00:31:31,674 --> 00:31:34,522
particularly helpful against. Or
some of these like.

547
00:31:34,840 --> 00:31:38,296
150 applications filed by a
single attorney that contains

548
00:31:38,296 --> 00:31:42,136
the goods, false beards and
another the same attorney who

549
00:31:42,136 --> 00:31:45,976
filed a baffling combination of
cages for household pets. Cruet

550
00:31:45,976 --> 00:31:50,968
sets for oil and vinegar and
ski, wax brushes and so I think

551
00:31:50,968 --> 00:31:54,040
that these are the new
proceedings would be

552
00:31:54,040 --> 00:31:57,112
particularly helpful in going
after those types of

553
00:31:57,112 --> 00:32:00,568
applications that seem you're
highly unlikely to ever have

554
00:32:00,568 --> 00:32:04,408
actual use together, and the
questions that I have in

555
00:32:04,408 --> 00:32:08,806
particular are. How this would
be most useful to trademark

556
00:32:08,806 --> 00:32:13,173
owners an the first is that I
understand this procedure that

557
00:32:13,173 --> 00:32:16,746
expungement reexamination is
would be faster and cheaper than

558
00:32:16,746 --> 00:32:21,510
a contested dispute at the TTB.
But with the parties that are

559
00:32:21,510 --> 00:32:23,495
involved, I believe that the.

560
00:32:24,130 --> 00:32:28,758
This would be most useful if it
was faster and cheaper than at

561
00:32:28,758 --> 00:32:33,030
least as fast, or at least as
cheap as a default judgment

562
00:32:33,030 --> 00:32:37,658
before the USPTO is. Most of the
parties that would be subject to

563
00:32:37,658 --> 00:32:42,286
these would not be in a position
to respond with use, given that

564
00:32:42,286 --> 00:32:45,846
the wide ranging applications
that they applied for and if

565
00:32:45,846 --> 00:32:51,186
there is a way to make it that
it is as fast as a default

566
00:32:51,186 --> 00:32:54,746
judgment, I think that would be
preferable. Right now, a

567
00:32:54,746 --> 00:32:56,526
petition to cancel a single

568
00:32:56,526 --> 00:33:00,783
class application. Is $600 with
a $200 refunded fee where the

569
00:33:00,783 --> 00:33:04,820
claim is based on non use or
abandonment and receives a

570
00:33:04,820 --> 00:33:09,224
default judgment and we can get
that done in about 92120 days.

571
00:33:09,224 --> 00:33:12,894
That keeps increasing but
ultimately that is kind of what

572
00:33:12,894 --> 00:33:17,298
we're working with right now to
make a very similar nonuse claim

573
00:33:17,298 --> 00:33:20,601
before the board. If expungement
in reexamination is more

574
00:33:20,601 --> 00:33:25,005
expensive or it takes more time
than I believe, many of the

575
00:33:25,005 --> 00:33:29,409
clients that I represent will
likely just go the route of the

576
00:33:29,409 --> 00:33:33,101
TTB. Given the types of
applications that they are and

577
00:33:33,101 --> 00:33:36,491
they high likelihood that they
will receive a default judgment

578
00:33:36,491 --> 00:33:40,559
in response to the claims that
are being made, and which would

579
00:33:40,559 --> 00:33:44,288
further put burden on the TTB
that is already experiencing a

580
00:33:44,288 --> 00:33:45,983
strain of increased filings and

581
00:33:45,983 --> 00:33:50,360
pendency times. For flexible
deadlines, I think that the

582
00:33:50,360 --> 00:33:53,870
biggest key is is predictability
because the with docketing

583
00:33:53,870 --> 00:33:58,160
systems and another yeah other
things to try to determine what

584
00:33:58,160 --> 00:34:02,840
a due date is for any particular
proceeding should be across the

585
00:34:02,840 --> 00:34:07,520
board. It should not be up to
each examining attorney to have

586
00:34:07,520 --> 00:34:11,810
the discretion to set shorter
deadlines and it should not be

587
00:34:11,810 --> 00:34:14,150
on a case by case basis.

588
00:34:14,720 --> 00:34:17,672
For letters of protest, we're
thrilled that Congress has

589
00:34:17,672 --> 00:34:20,952
qualified this. We think it's
under used system that gives

590
00:34:20,952 --> 00:34:24,232
trademark owners the chance to
head off an expensive time,

591
00:34:24,232 --> 00:34:26,528
consuming Inter partes
proceeding and provide the

592
00:34:26,528 --> 00:34:28,496
examining attorney with
additional context and

593
00:34:28,496 --> 00:34:32,432
information that they may not
have been able to have access to

594
00:34:32,432 --> 00:34:36,368
in the short period of time that
they examine this. However, my

595
00:34:36,368 --> 00:34:40,632
concern is the new mandate of a
60 day period with the current

596
00:34:40,632 --> 00:34:43,912
staffing of the Petitions
Office. I believe that will be

597
00:34:43,912 --> 00:34:45,552
difficult to reach because of.

598
00:34:45,620 --> 00:34:50,110
Just the influx of new
petitions and causing a delay

599
00:34:50,110 --> 00:34:54,151
and you ultimately making
sure that the staff members,

600
00:34:54,151 --> 00:34:57,294
whether their attorneys or
administrative staff, have

601
00:34:57,294 --> 00:35:01,335
the training and manpower
necessary to meet these new

602
00:35:01,335 --> 00:35:04,927
requirements or the TMA
something we really think

603
00:35:04,927 --> 00:35:08,968
would be important to the
success of this program.

604
00:35:18,890 --> 00:35:22,650
Thank you very much Mr Bro.
Appreciate your comments. The

605
00:35:22,650 --> 00:35:25,282
next speaker we have is a Daniel

606
00:35:25,282 --> 00:35:26,940
Kelly. Mr Kelly.

607
00:35:28,240 --> 00:35:29,490
Yes, can you hear me?

608
00:35:31,350 --> 00:35:36,069
Yes, I can hear you great. Thank
you. Good morning, good

609
00:35:36,069 --> 00:35:41,217
afternoon. My name is Dan Kelly.
I am deputy general counsel at

610
00:35:41,217 --> 00:35:46,794
Vista Outdoor and Vista Outdoor
is a House of brands we own such

611
00:35:46,794 --> 00:35:50,226
brands as camelback water
bottles, dull helmets, and

612
00:35:50,226 --> 00:35:54,516
Bushnell optics. I just wanted
to flag really 11 issue

613
00:35:54,516 --> 00:35:56,232
regarding reexamination
expungement certainly

614
00:35:56,232 --> 00:36:00,093
acknowledged the Deadwood
problem and glad to see that

615
00:36:00,093 --> 00:36:02,238
we're taking steps to address

616
00:36:02,238 --> 00:36:07,810
that. My concern is that in
fixing that issue, we don't

617
00:36:07,810 --> 00:36:12,580
create other problems, and in
particular of drawn analogy too.

618
00:36:13,160 --> 00:36:17,579
The rise of online commercial
marketplaces and platforms when

619
00:36:17,579 --> 00:36:22,489
those systems were built, I
think few people envisioned the

620
00:36:22,489 --> 00:36:26,417
breath of problems that would
engender regarding counterfeit

621
00:36:26,417 --> 00:36:31,327
products. And of course many
parties have taken steps to

622
00:36:31,327 --> 00:36:34,764
address those, including the
platforms themselves have

623
00:36:34,764 --> 00:36:39,674
created robust systems that are
designed to empower companies to

624
00:36:39,674 --> 00:36:43,602
report counterfeits and have
them taken down, unfortunately.

625
00:36:43,940 --> 00:36:48,956
This has led to an even further
problem, which is that in

626
00:36:48,956 --> 00:36:52,718
certain places those systems
themselves are then abused quite

627
00:36:52,718 --> 00:36:56,898
often by by competitors filing
what are called false flag,

628
00:36:56,898 --> 00:36:58,152
takedowns and whatnot.

629
00:36:58,750 --> 00:37:04,252
So this is really just to sort
of take a lesson. From that. We

630
00:37:04,252 --> 00:37:08,182
could also think analogy,
analogously to a little over a

631
00:37:08,182 --> 00:37:11,719
decade ago when patent marking
statutes were abused by

632
00:37:11,719 --> 00:37:15,649
opportunists. So I just wanted
to encourage those who are

633
00:37:15,649 --> 00:37:18,793
involved in the rulemaking
process to consider carefully

634
00:37:18,793 --> 00:37:22,723
all of the potentials for abuse
is that can arise.

635
00:37:23,330 --> 00:37:27,026
And think through and plan for
potential bad actors or abuse is

636
00:37:27,026 --> 00:37:32,120
at the outset. Liam, I've three
ideas concretely to suggest in

637
00:37:32,120 --> 00:37:36,740
this regard, and this is
probably by no means a complete

638
00:37:36,740 --> 00:37:41,780
list, or perhaps even the best
ideas, but one is making filing

639
00:37:41,780 --> 00:37:45,560
fees significant enough to Ward
off nuisance filings. Secondly,

640
00:37:45,560 --> 00:37:49,340
consider perjury recourse for
bad faith filings, and then

641
00:37:49,340 --> 00:37:52,700
third, irrespective of those
other two suggestions, consider

642
00:37:52,700 --> 00:37:56,900
implementing something along the
lines of a three strikes rule

643
00:37:56,900 --> 00:37:58,160
against frivolous filings.

644
00:37:59,100 --> 00:38:00,654
And those are my
comments. Thank you.

645
00:38:05,950 --> 00:38:07,540
Thank you very much Mr Kelly.

646
00:38:08,220 --> 00:38:10,020
Next we have Michael Kelly.

647
00:38:24,940 --> 00:38:30,113
Hello. Can you hear me, Michael?
Yes, we can hear you great.

648
00:38:30,113 --> 00:38:33,843
Thank you and good afternoon.
I'd like to thank Commissioner

649
00:38:33,843 --> 00:38:36,827
Gooder, Deputy Commissioner
Cotton and Chief Judge Rogers

650
00:38:36,827 --> 00:38:39,811
for the opportunity to provide
input regarding the

651
00:38:39,811 --> 00:38:41,303
implementation of the Trademark

652
00:38:41,303 --> 00:38:45,600
Modernization Act. My name is
Michael Kelly and I am a senior

653
00:38:45,600 --> 00:38:47,630
corporate counsel of
intellectual property at Amazon.

654
00:38:48,210 --> 00:38:51,482
Amazon appreciates the
dedication and hard work that

655
00:38:51,482 --> 00:38:55,572
the office has put into this
process. By soliciting these

656
00:38:55,572 --> 00:38:58,435
comments and receiving
stakeholder feedback, we applaud

657
00:38:58,435 --> 00:39:02,525
the office is active engagement
with all these stakeholders to

658
00:39:02,525 --> 00:39:06,206
maintain the integrity of the US
trademark register. Remove

659
00:39:06,206 --> 00:39:08,660
improper trademark
registrations, stop bad actors

660
00:39:08,660 --> 00:39:12,750
from obtaining rights that they
shouldn't, and close gaps to

661
00:39:12,750 --> 00:39:14,386
reduce vectors of abuse.

662
00:39:15,070 --> 00:39:18,670
Amazon is a large customer and
steadfast supporter of the

663
00:39:18,670 --> 00:39:22,068
Trademark Office. Trademarks are
vital to Amazon's global

664
00:39:22,068 --> 00:39:25,598
business, both to our own
business and just as importantly

665
00:39:25,598 --> 00:39:29,128
to the numerous selling partners
who build and grow their

666
00:39:29,128 --> 00:39:30,187
businesses on Amazon.

667
00:39:31,520 --> 00:39:34,292
Friends are vital to
commercial identity. An

668
00:39:34,292 --> 00:39:37,856
establishing customer trust to
safeguard the integrity of the

669
00:39:37,856 --> 00:39:40,232
Trademark Office. The
implementation of the

670
00:39:40,232 --> 00:39:42,608
Trademark Modernization Act
should avoid unintended

671
00:39:42,608 --> 00:39:46,568
consequences that might open
up new abuse vectors to bad

672
00:39:46,568 --> 00:39:49,340
actors or complicate the
trademark application process

673
00:39:49,340 --> 00:39:53,696
to a degree that limits the
access of small businesses and

674
00:39:53,696 --> 00:39:57,260
those who choose to file their
own trademark applications.

675
00:39:58,540 --> 00:40:00,004
To that end, our common say

676
00:40:00,004 --> 00:40:03,488
concern. Potential abuse of the
newly established ex parte

677
00:40:03,488 --> 00:40:06,656
procedures in the Trademark
Modernization Act and ensuring

678
00:40:06,656 --> 00:40:09,428
clarity and consistency in
response times during

679
00:40:09,428 --> 00:40:10,616
prosecution of trademark

680
00:40:10,616 --> 00:40:13,900
applications. There must be
sufficient gatekeeping

681
00:40:13,900 --> 00:40:17,720
mechanisms to avoid potential
abuse of the new ex parte

682
00:40:17,720 --> 00:40:21,158
procedures to discourage bad
actors who would undermine the

683
00:40:21,158 --> 00:40:24,214
goals of the Trademark
Modernization Act. There are

684
00:40:24,214 --> 00:40:27,270
several potential gatekeeping
mechanisms that we propose as

685
00:40:27,270 --> 00:40:29,944
options for consideration,
including one establishing an

686
00:40:29,944 --> 00:40:33,000
appropriate bar for reasonable
investigations and the evidence

687
00:40:33,000 --> 00:40:35,292
that would support an ex parte

688
00:40:35,292 --> 00:40:40,240
proceeding. Two filing fees, at
least comperable to those for

689
00:40:40,240 --> 00:40:41,530
opposition and cancellation

690
00:40:41,530 --> 00:40:45,378
proceedings. And three low
cost and low friction means

691
00:40:45,378 --> 00:40:48,582
of dismissing ex parte
proceedings when it can be

692
00:40:48,582 --> 00:40:51,074
quickly established that a
preceding lacks merit.

693
00:40:52,320 --> 00:40:55,504
With spectres, flexible response
periods, Amazon believes the

694
00:40:55,504 --> 00:40:59,882
clarity consistency of response
period will be best to serve the

695
00:40:59,882 --> 00:41:03,066
goals of the Trademark
Modernization Act. While there

696
00:41:03,066 --> 00:41:06,648
may be a place for examining
attorney discretion response

697
00:41:06,648 --> 00:41:10,628
periods of less than six months
should be used sparingly.

698
00:41:11,360 --> 00:41:14,472
Reserving shorter response
periods for refusals that are

699
00:41:14,472 --> 00:41:18,751
linked to abuse vectors observed
by the office or non substantive

700
00:41:18,751 --> 00:41:21,085
refusals helps avoid a
potentially disproportionate

701
00:41:21,085 --> 00:41:23,808
negative impact on small
businesses and less

702
00:41:23,808 --> 00:41:26,920
sophisticated followers who are
possibly more susceptible to

703
00:41:26,920 --> 00:41:30,032
procedural default when faced
with flexible response times.

704
00:41:31,460 --> 00:41:33,791
Amazon appreciates the
opportunity to provide input

705
00:41:33,791 --> 00:41:36,455
on the Trademark Modernization
Act implementation process and

706
00:41:36,455 --> 00:41:39,785
is standing by to help support
the Trademark Office on

707
00:41:39,785 --> 00:41:42,782
implementing the bill as the
process goes forward. Thank

708
00:41:42,782 --> 00:41:45,446
you for allowing Amazon to
provide these comments.

709
00:41:50,200 --> 00:41:54,502
Thank you so much Mike.
Appreciate your your comments.

710
00:41:54,502 --> 00:41:56,892
Next, we have John Chau.

711
00:42:04,700 --> 00:42:08,039
OK, I understand that John Chau
is not online.

712
00:42:08,880 --> 00:42:14,690
So we will move to our
next speaker, Thomas Brooke.

713
00:42:31,380 --> 00:42:33,900
Thomas Brooke. Are you on line?

714
00:42:41,680 --> 00:42:43,647
OK, I think we'll be moving on.

715
00:42:45,380 --> 00:42:46,780
We have

716
00:42:49,030 --> 00:42:51,326
let's see is anger will see me.

717
00:42:52,780 --> 00:42:55,516
You are next. I see you're
on camera, but we don't have

718
00:42:55,516 --> 00:42:56,428
audio for you yet.

719
00:42:59,700 --> 00:43:03,407
Looks like we are connected
audio, but you're on mute Zynga?

720
00:43:03,407 --> 00:43:08,125
How about now? I think it just
unmuted me. I thank you. Yes, I

721
00:43:08,125 --> 00:43:11,832
hear you now. OK, great good
afternoon. I'm in single West

722
00:43:11,832 --> 00:43:16,579
center. And um, senior attorney
and director for the artworks.

723
00:43:16,579 --> 00:43:19,627
Legal incubator and residency
program. I personally was

724
00:43:19,627 --> 00:43:23,056
extremely excited to hear the
new procedure set forth.

725
00:43:24,300 --> 00:43:26,848
And the announcement and the
trademark Monetization

726
00:43:26,848 --> 00:43:29,396
Modernization Act? I said
monetization, always talking

727
00:43:29,396 --> 00:43:32,308
bout how can we monetize
intellectual property? But

728
00:43:32,308 --> 00:43:35,220
as a practitioner and more
importantly, an educator

729
00:43:35,220 --> 00:43:37,768
that trains new and
transitioning attorneys, I'm

730
00:43:37,768 --> 00:43:40,316
thankful with this
opportunity to comment and

731
00:43:40,316 --> 00:43:43,592
share a bit of what we
experienced. It artworks

732
00:43:43,592 --> 00:43:46,504
working with artists as well
as emerging businesses.

733
00:43:47,750 --> 00:43:52,557
The rules that we believe will
be most effective and efficient

734
00:43:52,557 --> 00:43:56,490
in the process of applications
are expungement procedure and

735
00:43:56,490 --> 00:44:00,423
cancellation based on non use.
Flexible response periods for

736
00:44:00,423 --> 00:44:04,356
office actions. Third party
submissions as well as the

737
00:44:04,356 --> 00:44:08,289
rebuttable presumption. So, with
the expungement many times while

738
00:44:08,289 --> 00:44:12,659
conducting trademark searches on
behalf of our clients, we find

739
00:44:12,659 --> 00:44:17,029
goods or services or goods and
services in a registration

740
00:44:17,029 --> 00:44:21,237
listed as. Active even though
the register has never used that

741
00:44:21,237 --> 00:44:24,141
trademark in Commerce, this
procedure will be extremely

742
00:44:24,141 --> 00:44:27,045
effective. We believe in helping
businesses obtain trademark

743
00:44:27,045 --> 00:44:30,675
protection and instances where
they may have been blocked. You

744
00:44:30,675 --> 00:44:34,668
know, due to these type of
registrations where the goods or

745
00:44:34,668 --> 00:44:39,024
services simply are not in use.
This rule brings, I believe, a

746
00:44:39,024 --> 00:44:43,017
little bit of fairness to the
process and to balance the

747
00:44:43,017 --> 00:44:45,921
process for those that are
concerned about this

748
00:44:45,921 --> 00:44:48,825
expungement. There is the
examination proceeding, so I'm

749
00:44:48,825 --> 00:44:50,277
glad that that's there.

750
00:44:51,120 --> 00:44:54,990
Next, the flexible response
period for office action now.

751
00:44:54,990 --> 00:44:59,290
Contrary to some comments, we
believe this rule will be

752
00:44:59,290 --> 00:45:02,300
extremely helpful because
oftentimes applicant does not

753
00:45:02,300 --> 00:45:06,600
need the entire six months
respond, and when they do

754
00:45:06,600 --> 00:45:10,900
respond many times it results in
another issuance of another

755
00:45:10,900 --> 00:45:16,490
office action. And so we just
lost a year right two six month

756
00:45:16,490 --> 00:45:21,650
periods. We've lost a year and
then many times there still a

757
00:45:21,650 --> 00:45:26,310
final rejection. So we lost a
year final rejection and so this

758
00:45:26,310 --> 00:45:30,083
here means an entire year was
raced it an granting the

759
00:45:30,083 --> 00:45:33,513
authority to set an office
action response for a period

760
00:45:33,513 --> 00:45:36,943
that is shorter than the six
months will definitely improve

761
00:45:36,943 --> 00:45:40,716
the process in terms of
efficiency. I think the the fix

762
00:45:40,716 --> 00:45:44,489
for the help to balance it out
is the fact that.

763
00:45:45,220 --> 00:45:50,470
If an applicant needs more time
and say only 60 days will set or

764
00:45:50,470 --> 00:45:54,970
90 days and they need more time,
they have the ability within

765
00:45:54,970 --> 00:45:59,845
this rule here to ask for more
time if they believe they need

766
00:45:59,845 --> 00:46:03,595
more time. So we believe you
know the careful implementation

767
00:46:03,595 --> 00:46:07,720
of this rule. Definitely improve
on efficiency as well as address

768
00:46:07,720 --> 00:46:12,220
concerns that have been raised
here. We know we trust that the

769
00:46:12,220 --> 00:46:14,845
USPTL will carefully navigate
this and create.

770
00:46:15,750 --> 00:46:19,626
You know just a step by step
process so people don't get

771
00:46:19,626 --> 00:46:22,856
lossed and I'm not speaking
on behalf of a large

772
00:46:22,856 --> 00:46:25,440
Corporation. The majority of
our clients are new.

773
00:46:26,650 --> 00:46:30,556
Emerging businesses better just
now getting in this game.

774
00:46:31,510 --> 00:46:35,712
The other rule is the third
party submissions rule. I love

775
00:46:35,712 --> 00:46:40,296
this one person love with them.
We believe that this rule is

776
00:46:40,296 --> 00:46:44,498
extremely helpful and will add
more of a judicial process. Feel

777
00:46:44,498 --> 00:46:48,700
at this filing level. Currently,
the examiner sort of serves as

778
00:46:48,700 --> 00:46:52,138
Judge Angory an coming from a
litigation background myself.

779
00:46:52,138 --> 00:46:54,048
This is always felt slightly

780
00:46:54,048 --> 00:46:58,479
uncomfortable. So with this new
rule in place, it will ease some

781
00:46:58,479 --> 00:47:02,067
of that for us litigators, as
well as allow you know the

782
00:47:02,067 --> 00:47:05,655
ubiquitous opposing party to
have a say so I love this one.

783
00:47:06,430 --> 00:47:10,690
And finally, I think at the
bottom of the notice it talked

784
00:47:10,690 --> 00:47:13,885
about the rebuttal presumption
of irreparable harm. I think

785
00:47:13,885 --> 00:47:17,080
this is the perfect finishing
touch to the Trademark

786
00:47:17,080 --> 00:47:20,275
Modernization Act, because in
allowing a trademark owner to

787
00:47:20,275 --> 00:47:23,825
seek injunctive relief at any of
these phases serves efficiency

788
00:47:23,825 --> 00:47:26,665
process. We're all about
efficiency here. It artworks

789
00:47:26,665 --> 00:47:30,925
because we're trying to get new
business, is up and going. We're

790
00:47:30,925 --> 00:47:33,765
trying to work with
entrepreneurs, were trying to

791
00:47:33,765 --> 00:47:37,670
work with expanding businesses,
and we love it when we can

792
00:47:37,670 --> 00:47:42,590
squeeze. Any kind of efficiency
out of it. We deeply believe

793
00:47:42,590 --> 00:47:46,631
that this will allow trademark
owners to more effectively

794
00:47:46,631 --> 00:47:51,121
police there mark. And while no
rulemaking is, you know

795
00:47:51,121 --> 00:47:53,366
specifically needed to do this.

796
00:47:54,210 --> 00:47:58,279
So simply having USPTO come out
in support of this is an amazing

797
00:47:58,279 --> 00:48:01,409
win for new and emerging
businesses who often fail in

798
00:48:01,409 --> 00:48:04,852
these early days. In these early
stages and simply, you don't

799
00:48:04,852 --> 00:48:08,608
need all the support they can
get in this process, so those

800
00:48:08,608 --> 00:48:12,364
are just our comments. Those
four really stood out to us and

801
00:48:12,364 --> 00:48:15,807
so on. Behalf of artworks. Thank
you for allowing these comments.

802
00:48:18,920 --> 00:48:22,231
Thank you so much for your
comments and your enthusiasm. I

803
00:48:22,231 --> 00:48:23,435
appreciate the support. Thank

804
00:48:23,435 --> 00:48:28,446
you. The next speaker we have
is nail mathony.

805
00:48:30,060 --> 00:48:31,160
Hi can you hear me?

806
00:48:32,000 --> 00:48:36,602
Yes, I can hear you great. My
name is Naomi, Donnie I'm the

807
00:48:36,602 --> 00:48:41,204
CEO of a legal first. Thank you
for the present to speak today.

808
00:48:41,204 --> 00:48:45,452
I, like many others, applaud
menu to change is the USPT is

809
00:48:45,452 --> 00:48:48,992
making to improve the integrity
of the trademark register. There

810
00:48:48,992 --> 00:48:52,178
are a number of trademark
service providers like ourselves

811
00:48:52,178 --> 00:48:56,072
that rely on underlying US PTO,
trademark data and related APIs

812
00:48:56,072 --> 00:48:59,966
to offer services to the
community. In the case of my

813
00:48:59,966 --> 00:49:02,798
company, we provide trademark
docking software and rely.

814
00:49:02,880 --> 00:49:07,692
Extensively under TSR API to
make that possible as the USPTO

815
00:49:07,692 --> 00:49:12,103
implement the changes under the
TMA, we would request that the

816
00:49:12,103 --> 00:49:15,712
USPTO considered a technical
implementation and give IP

817
00:49:15,712 --> 00:49:19,321
technology providers using USPTO date. Ample advance warning

818
00:49:19,321 --> 00:49:23,732
of an guidance about what's
coming so that they can update

819
00:49:23,732 --> 00:49:27,341
their technology, continue to
serve the IP committee and

820
00:49:27,341 --> 00:49:30,549
practitioners will not be
affected adversely. Lastly, we

821
00:49:30,549 --> 00:49:33,757
would encourage special care to
ensure consistency and

822
00:49:33,757 --> 00:49:36,653
predictability. In setting any
flexible office action deadlines

823
00:49:36,653 --> 00:49:40,721
as it would have direct impact
on Docketing as well as other

824
00:49:40,721 --> 00:49:43,094
services provided by technology
providers. Thank you.

825
00:49:47,870 --> 00:49:50,425
Thank you very much
for your comments.

826
00:49:52,580 --> 00:49:56,924
The next speaker we have is
Angela Grayson.

827
00:49:59,440 --> 00:50:01,000
Angela R. You

828
00:50:04,020 --> 00:50:06,386
on line. OK, I guess we're going

829
00:50:06,386 --> 00:50:10,653
to. Unmute you so you can speak,
I would but.

830
00:50:11,650 --> 00:50:13,108
I don't think we'll have video.

831
00:50:27,030 --> 00:50:27,770
Angela

832
00:50:37,220 --> 00:50:38,180
OK.

833
00:50:43,150 --> 00:50:46,222
I think we'll have the tech
people continue to work on that.

834
00:50:47,670 --> 00:50:51,150
Um, so let's move on to the next

835
00:50:51,150 --> 00:50:54,970
speaker. Uh, which is
Steve Baird?

836
00:50:56,070 --> 00:50:58,709
Mr Baird are you euro? I see

837
00:50:58,709 --> 00:51:01,070
your. Coming on line here.

838
00:51:08,700 --> 00:51:10,674
Well, wait a few minutes
for connection.

839
00:51:33,490 --> 00:51:37,624
Bear with us. We have Mr. Baird
coming on line now he's muted.

840
00:51:38,440 --> 00:51:41,190
Thank you, Miss Cotton. Mr Bear
can you hear me now?

841
00:51:41,820 --> 00:51:46,297
Yes, I can hear you wonderful.
I'm Steve Baird, a shareholder

842
00:51:46,297 --> 00:51:50,774
with Greenberg Traurig. But my
remarks today or not, on behalf

843
00:51:50,774 --> 00:51:56,065
of any particular client or the
firm. So these are kind of my

844
00:51:56,065 --> 00:52:00,135
personal views as a 30 year
practitioner in the trademark

845
00:52:00,135 --> 00:52:04,612
space. And I'd note initially
thank you for all of those

846
00:52:04,612 --> 00:52:08,275
speakers that preceded me, their
insights and concerns have

847
00:52:08,275 --> 00:52:11,938
really addressed most of the
issues or questions that.

848
00:52:12,070 --> 00:52:16,591
I've had about implementation of
the TMA, so I'll limit my

849
00:52:16,591 --> 00:52:21,112
remarks instead of kind of
piling on to any of those

850
00:52:21,112 --> 00:52:23,020
comments. 2.

851
00:52:24,390 --> 00:52:29,340
Talk about the identity of of
the protester. Miss contin. You

852
00:52:29,340 --> 00:52:33,840
mentioned that there really is
no standing requirement in the

853
00:52:33,840 --> 00:52:38,340
statute, doesn't contemplate one
allowing any person to file to

854
00:52:38,340 --> 00:52:42,840
seek nonuse ex parte proceeding.
As is the case with.

855
00:52:43,600 --> 00:52:47,700
The the now codified letter
protest procedure, one of the

856
00:52:47,700 --> 00:52:51,800
things that I'll note in that
letter of protest protest

857
00:52:51,800 --> 00:52:57,562
procedure. Is that it currently
Shields the identity of the

858
00:52:57,562 --> 00:53:01,706
protester without someone
seeking a FOIA request too?

859
00:53:02,830 --> 00:53:08,150
Perhaps obtain the filing that
that that triggered a refusal

860
00:53:08,150 --> 00:53:12,938
during ex parte examination of
a pending application. I'm

861
00:53:12,938 --> 00:53:17,194
wondering whether the officers
thought through whether to

862
00:53:17,194 --> 00:53:23,046
maintain that same process and
procedure, and I guess I would

863
00:53:23,046 --> 00:53:28,366
encourage the office to think
about doing that to maximize

864
00:53:28,366 --> 00:53:32,090
the participation and
willingness of protesters too.

865
00:53:33,990 --> 00:53:38,270
Initiate those kinds of those
kinds of proceedings. I'd also

866
00:53:38,270 --> 00:53:42,550
note that I think for the
success of the program.

867
00:53:43,220 --> 00:53:48,320
It would be important to ensure
consistent decisions, and so

868
00:53:48,320 --> 00:53:53,420
while the TMA speaks of
examiners decisions and then the

869
00:53:53,420 --> 00:53:55,460
ability of this director.

870
00:53:56,990 --> 00:54:00,390
Unless they overturn an
examiner's decision, it doesn't

871
00:54:00,390 --> 00:54:04,215
appear that there's really any
process or procedure for

872
00:54:04,215 --> 00:54:08,465
determining who that examine
arisen, since these will all be

873
00:54:08,465 --> 00:54:09,740
challenges post registration.

874
00:54:12,500 --> 00:54:16,647
I'm not sure who the office is
contemplating having make those

875
00:54:16,647 --> 00:54:21,171
decisions, but I would urge the
office to think about a smaller

876
00:54:21,171 --> 00:54:24,941
number of examiners that are
going to specially trained to

877
00:54:24,941 --> 00:54:28,334
handle these procedures
efficiently and all on the same

878
00:54:28,334 --> 00:54:31,727
page about how to render
decissions on a consistent

879
00:54:31,727 --> 00:54:36,274
basis. Thank you very much
for the opportunity to raise

880
00:54:36,274 --> 00:54:39,934
these issues and appreciate
all the work that the office

881
00:54:39,934 --> 00:54:41,764
is doing in this regard.

882
00:54:45,450 --> 00:54:47,670
Thank you so much for your
comments. Mr Baird. We

883
00:54:47,670 --> 00:54:51,148
appreciate that. And so
appreciate appreciate their vote

884
00:54:51,148 --> 00:54:54,978
of confidence and support moving
on to the next speaker.

885
00:54:55,600 --> 00:54:58,040
We have a Robert Pierce.

886
00:54:58,750 --> 00:55:00,040
Mr. Pierce, are you on line?

887
00:55:03,650 --> 00:55:04,640
You are muted.

888
00:55:06,520 --> 00:55:09,790
Hello, my name is Robert Pierce
with Jacobsen home and.

889
00:55:12,400 --> 00:55:16,450
And thank you for the
opportunity to be able to

890
00:55:16,450 --> 00:55:21,715
comment on the implementation of
the TMI. My guess is going to be

891
00:55:21,715 --> 00:55:24,955
on primarily some mechanics with
the expungement slash.

892
00:55:25,740 --> 00:55:28,936
Um? Examination procedure and

893
00:55:28,936 --> 00:55:32,198
then. Brief remarks on the.

894
00:55:33,960 --> 00:55:35,490
Flexible response period.

895
00:55:36,290 --> 00:55:41,690
As far as the expungement goes
and the re examination.

896
00:55:42,980 --> 00:55:48,020
I think it's very important
that the office promulgates

897
00:55:48,020 --> 00:55:49,140
standards on.

898
00:55:50,620 --> 00:55:55,210
The burden that aid that
a registrant has in

899
00:55:55,210 --> 00:55:58,780
responding to a petition
under either procedure.

900
00:56:00,330 --> 00:56:02,220
I think based on the.

901
00:56:03,370 --> 00:56:05,872
Language of the statute that the

902
00:56:05,872 --> 00:56:08,920
burden should. The if the.

903
00:56:10,080 --> 00:56:11,670
Registrant can produce.

904
00:56:12,220 --> 00:56:15,876
Sufficient evidence that would
justify registration that they

905
00:56:15,876 --> 00:56:18,161
would have met their burden.

906
00:56:19,990 --> 00:56:24,070
Similarly, I would ask that
the registrant given.

907
00:56:25,780 --> 00:56:31,312
About the same amount of time
period to respond as a defendant

908
00:56:31,312 --> 00:56:34,539
in a opposition cancellation
proceeding preceding especially

909
00:56:34,539 --> 00:56:39,610
in this case, because the
registrants is going to have to

910
00:56:39,610 --> 00:56:42,376
be able to produce evidence of.

911
00:56:43,660 --> 00:56:46,919
4. Typically multiple goods.

912
00:56:48,100 --> 00:56:52,950
Likewise. We're not likewise,
but considering the burden for.

913
00:56:53,740 --> 00:56:57,152
The petitioner in these

914
00:56:57,152 --> 00:57:01,808
proceedings since. The idea here
is, is that.

915
00:57:02,700 --> 00:57:08,108
It's you that the definition of
use of Commerce is the same as

916
00:57:08,108 --> 00:57:11,436
outlined in the statute that
what constitutes reasonable

917
00:57:11,436 --> 00:57:15,180
examination of what constitutes
prima fascia case should have

918
00:57:15,180 --> 00:57:19,340
flexible standards based on the
relevant trade or industry to

919
00:57:19,340 --> 00:57:21,836
reflect the fact that use in

920
00:57:21,836 --> 00:57:25,156
Commerce. Has a has
a flexible standard?

921
00:57:27,170 --> 00:57:32,345
In addition, in the case of
expungement, because the

922
00:57:32,345 --> 00:57:38,095
operative word here in the
statute is never that any

923
00:57:38,095 --> 00:57:41,545
reasonable investigation will
address use overtime.

924
00:57:42,660 --> 00:57:43,580
So the.

925
00:57:45,850 --> 00:57:50,970
It should outline the steps
that the petitioner took to

926
00:57:50,970 --> 00:57:51,482
investigate.

927
00:57:52,980 --> 00:57:55,220
You starting from registration.

928
00:57:55,980 --> 00:57:58,668
Through current period through
the current period.

929
00:58:00,690 --> 00:58:05,946
As far as the rigs it for the
flexible response periods go.

930
00:58:07,510 --> 00:58:12,073
This area strikes me as a
potential, has potential

931
00:58:12,073 --> 00:58:15,115
pitfalls for unwary
applicants and practitioners,

932
00:58:15,115 --> 00:58:17,143
and could increase costs.

933
00:58:19,220 --> 00:58:20,630
I would like to see.

934
00:58:21,190 --> 00:58:28,186
This to be restricted to or
not left in discretion of the

935
00:58:28,186 --> 00:58:33,433
examiner, but rather that there
be specific standards and

936
00:58:33,433 --> 00:58:38,097
preference, like just be it
apply to ministerial.

937
00:58:40,040 --> 00:58:42,168
Objections such as the.

938
00:58:44,290 --> 00:58:50,527
Need for the US Attorney
need for the applicant's

939
00:58:50,527 --> 00:58:51,913
email address.

940
00:58:53,870 --> 00:58:57,517
Things concerning like the
applicants address or

941
00:58:57,517 --> 00:58:58,559
entity type.

942
00:59:00,400 --> 00:59:03,403
Things like Mark,
Description, Color claims in

943
00:59:03,403 --> 00:59:07,693
those areas and it should not
be applied to substantive

944
00:59:07,693 --> 00:59:11,554
refusals under under section
two of the trademark at

945
00:59:11,554 --> 00:59:14,557
booting disclaimers. Thank
you for your consideration

946
00:59:14,557 --> 00:59:19,705
and I look forward to working
with the office on this rule

947
00:59:19,705 --> 00:59:20,992
in the future.

948
00:59:24,440 --> 00:59:26,992
Thank you so much for your
comments. I we really appreciate

949
00:59:26,992 --> 00:59:30,440
those. The next speaker we
have is Christina Metropolis.

950
00:59:31,620 --> 00:59:36,235
Hi, are you able to hear me?
Yes, we can hear you great.

951
00:59:36,235 --> 00:59:40,495
Thank you for the opportunity to
speak today. On behalf of the

952
00:59:40,495 --> 00:59:43,690
members of the American Apparel
and Footwear Association. My

953
00:59:43,690 --> 00:59:47,240
name is Christina Metropolis and
IAM Afas director of brand

954
00:59:47,240 --> 00:59:50,080
protection and manufacturing
initiatives. For those of you

955
00:59:50,080 --> 00:59:53,275
not familiar with our
Association, we are the National

956
00:59:53,275 --> 00:59:55,760
Trade Association representing
apparel, footwear, travel goods,

957
00:59:55,760 --> 00:59:58,600
another some products, companies
and their suppliers. We

958
00:59:58,600 --> 01:00:00,375
represent more than 1000 word.

959
01:00:00,490 --> 01:00:04,648
Famous name brands. An AFA is
the trusted public policy and

960
01:00:04,648 --> 01:00:08,050
political voice of the apparel
and footwear industry. The

961
01:00:08,050 --> 01:00:10,696
apparel and footwear
manufacturers and companies who

962
01:00:10,696 --> 01:00:14,098
are part of our membership are
increasingly facing challenges

963
01:00:14,098 --> 01:00:17,878
presented by fraudulent and bad
faith trademark filers. Many of

964
01:00:17,878 --> 01:00:20,902
our members are particularly
concerned with the significant

965
01:00:20,902 --> 01:00:24,682
increase in trademark filings at
the USPTO that are clearly

966
01:00:24,682 --> 01:00:28,462
submitted in bad faith. The
Trademark Modernization Act is a

967
01:00:28,462 --> 01:00:30,352
good first step in addressing

968
01:00:30,352 --> 01:00:33,240
this challenge. But as our
collective membership

969
01:00:33,240 --> 01:00:36,124
emphasizes, there are still
significant challenges. AFA

970
01:00:36,124 --> 01:00:39,008
supports the Trademark
Modernization Act and believes

971
01:00:39,008 --> 01:00:43,540
it allows new methods to address
emerging threats to the US

972
01:00:43,540 --> 01:00:46,836
trademark system and mitigate
negative impacts on US

973
01:00:46,836 --> 01:00:50,544
businesses. The law will provide
legitimate third parties avenues

974
01:00:50,544 --> 01:00:53,840
to challenge bad faith and
fraudulent applications that

975
01:00:53,840 --> 01:00:55,488
were previously not available.

976
01:00:56,240 --> 01:01:00,145
First, this law also gives the
USPTO the flexibility to review

977
01:01:00,145 --> 01:01:04,050
an application in less than six
months to be determined by

978
01:01:04,050 --> 01:01:07,600
rulemaking. Today, the US PTO
must give applicants a minimum

979
01:01:07,600 --> 01:01:12,215
of six months to respond to an
office action or inquiry by an

980
01:01:12,215 --> 01:01:15,055
examiner because of statutory
limitations. Shortening the time

981
01:01:15,055 --> 01:01:19,670
for an applicant to respond from
six months to 90 days or less

982
01:01:19,670 --> 01:01:22,510
would keep pending applications
moving through the system.

983
01:01:22,510 --> 01:01:25,705
Decreasing pendency this time
frame was set when applicants

984
01:01:25,705 --> 01:01:28,545
had to physically Mail in
specimens for inspection.

985
01:01:28,670 --> 01:01:32,222
And does not reflect the online
filing system in use today. We

986
01:01:32,222 --> 01:01:36,070
believe that the time should be
short and two at the most three

987
01:01:36,070 --> 01:01:38,734
months that an application is
pending at each stage.

988
01:01:39,300 --> 01:01:42,675
Second, the law provides several
different avenues for third

989
01:01:42,675 --> 01:01:46,425
party. Typically a trademark
brand Holder to object and offer

990
01:01:46,425 --> 01:01:49,050
evidence regarding registrations
in pending applications. Today,

991
01:01:49,050 --> 01:01:53,175
a third party has no effective
and timely path to present

992
01:01:53,175 --> 01:01:56,550
evidence of bad faith or
challenge a pending application

993
01:01:56,550 --> 01:01:59,925
or for that matter and issued
registration. This legislation

994
01:01:59,925 --> 01:02:03,675
codifies an informal process and
makes it a requirement to

995
01:02:03,675 --> 01:02:07,050
include evidence filed in
support of an objection within

996
01:02:07,050 --> 01:02:10,425
the application and examiner is
required to review challenges.

997
01:02:10,520 --> 01:02:12,250
As part of the application

998
01:02:12,250 --> 01:02:16,680
process. 3rd The last stab Lish
is expungement. An ex parte

999
01:02:16,680 --> 01:02:19,821
reexamination as alternatives to
challenging a bad faith or

1000
01:02:19,821 --> 01:02:21,915
fraudulent application. Today's
opposition and cancellation

1001
01:02:21,915 --> 01:02:26,103
proceedings are too slow and too
costly to provide an Ave for

1002
01:02:26,103 --> 01:02:29,244
relief during the clearance
process, often taking up to

1003
01:02:29,244 --> 01:02:32,734
three years. This law allows
third parties to submit evidence

1004
01:02:32,734 --> 01:02:36,224
of bad faith and race challenges
to bad faith applications.

1005
01:02:36,224 --> 01:02:39,365
Earlier on an an expedited
resolution schedule. This could

1006
01:02:39,365 --> 01:02:43,553
then become a viable means of
removing an obstacle to use or

1007
01:02:43,553 --> 01:02:45,298
registration as part of the

1008
01:02:45,298 --> 01:02:48,070
clearance process. If
applications were faster to

1009
01:02:48,070 --> 01:02:51,730
challenge, this would be an
indirect means of weakening the

1010
01:02:51,730 --> 01:02:54,292
publicly reported incentives for
filing fraudulent applications.

1011
01:02:54,292 --> 01:02:57,586
Collectively, these avenues
could become a viable means for

1012
01:02:57,586 --> 01:03:01,978
third parties to help declutter
the register. As I said, a FA

1013
01:03:01,978 --> 01:03:04,906
supports the Trademark
Modernization Act and views it

1014
01:03:04,906 --> 01:03:07,834
as an incremental step to combat
fraudulent applications.

1015
01:03:07,834 --> 01:03:11,128
However, our members are members
remain concerned that the

1016
01:03:11,128 --> 01:03:13,690
expungement ex parte
reexamination an letters of

1017
01:03:13,690 --> 01:03:16,618
protest continue to put the
burden and cost.

1018
01:03:16,730 --> 01:03:19,988
On legitimate brand holders to
police the trademark registry.

1019
01:03:19,988 --> 01:03:23,608
While we are grateful for these
additional tools, we're hopeful

1020
01:03:23,608 --> 01:03:27,228
that the US PTO will consider
measures they can implement

1021
01:03:27,228 --> 01:03:31,572
without legislation. We look to
the USPTO to work. What to find,

1022
01:03:31,572 --> 01:03:35,554
ways to work with industry, and
to use existing authority, or

1023
01:03:35,554 --> 01:03:38,812
develop new authority to prevent
these bad faith registrations

1024
01:03:38,812 --> 01:03:42,070
that so clearly harm our
trademark members. AFA would

1025
01:03:42,070 --> 01:03:46,052
like this to be a partnership
with the USPTO, which increases

1026
01:03:46,052 --> 01:03:47,138
scrutiny and examination.

1027
01:03:47,230 --> 01:03:49,830
Of applications that are
coming in, especially those

1028
01:03:49,830 --> 01:03:53,080
applications that indicate the
marks are in use in closing

1029
01:03:53,080 --> 01:03:56,655
the development of IP and a
strong means to protect our

1030
01:03:56,655 --> 01:04:00,230
Members designs is key to the
success of our members. We

1031
01:04:00,230 --> 01:04:03,155
appreciate the opportunity to
participate in the Round Table

1032
01:04:03,155 --> 01:04:05,755
and we look forward to
providing written comments

1033
01:04:05,755 --> 01:04:07,705
during the rulemaking process.
Thank you.

1034
01:04:12,620 --> 01:04:14,328
Thank you so much for
your comments.

1035
01:04:15,530 --> 01:04:19,202
For the next speaker we have
Susan Bro Zackscott.

1036
01:04:20,620 --> 01:04:24,580
Good afternoon and thank you for
this opportunity to speak with

1037
01:04:24,580 --> 01:04:27,460
you today and offer some
comments about the

1038
01:04:27,460 --> 01:04:30,700
implementation of the Trademark
Modernization Act. My name is

1039
01:04:30,700 --> 01:04:35,020
Susan Brozik Scott and I'm the
founder of a small woman owned

1040
01:04:35,020 --> 01:04:37,900
business. I multimedia
production company based here in

1041
01:04:37,900 --> 01:04:41,500
Pittsburgh, PA that launched
during the 2008 recession and is

1042
01:04:41,500 --> 01:04:43,660
somehow still standing despite
rigorous challenges,

1043
01:04:43,660 --> 01:04:47,620
particularly those posed in the
past year by a global pandemic.

1044
01:04:47,620 --> 01:04:52,300
I have to confess that until
last week, I did not know that

1045
01:04:52,300 --> 01:04:54,820
the TMA had even been passed by

1046
01:04:54,820 --> 01:04:59,207
Congress. And signed into law in
late December. I do try to

1047
01:04:59,207 --> 01:05:04,205
follow IP issues, but 2020 as we
can all attest was a year unlike

1048
01:05:04,205 --> 01:05:08,132
any other in our lifetimes. We
all face the challenges of

1049
01:05:08,132 --> 01:05:10,988
keeping ourselves and our
families safe, our children

1050
01:05:10,988 --> 01:05:13,844
educated, our jobs and
businesses afloat. And our

1051
01:05:13,844 --> 01:05:17,414
trademark registrations live
while at the same time we tried

1052
01:05:17,414 --> 01:05:21,698
as a society to process all the
other major issues in our

1053
01:05:21,698 --> 01:05:24,554
country from a President
presidential election, 2 issues

1054
01:05:24,554 --> 01:05:25,982
of equality and race.

1055
01:05:26,620 --> 01:05:29,692
Fast forward to today, March
1st. Here we are. I found out

1056
01:05:29,692 --> 01:05:32,508
Friday would have this chance
to give input today. So here

1057
01:05:32,508 --> 01:05:35,068
are just a few thoughts I
have on the TMI.

1058
01:05:36,190 --> 01:05:38,710
First, regarding flexible
response period for office

1059
01:05:38,710 --> 01:05:43,390
actions that the law says can be
short and I understand from the

1060
01:05:43,390 --> 01:05:47,350
six month response time down to
not less than 60 days.

1061
01:05:48,470 --> 01:05:52,814
As a small business owner, I
would simply ask you to consider

1062
01:05:52,814 --> 01:05:57,158
as you implement this how it
will affect people like me. Many

1063
01:05:57,158 --> 01:06:00,416
of us, especially women and
minority owned small businesses

1064
01:06:00,416 --> 01:06:02,950
are uniquely challenged right
from the start.

1065
01:06:03,820 --> 01:06:07,105
We often struggle for critical
initial funding, and by

1066
01:06:07,105 --> 01:06:11,120
necessity we invest our own
money and wear many hats that

1067
01:06:11,120 --> 01:06:14,770
presidents and CEOs in middle
and medium to large companies

1068
01:06:14,770 --> 01:06:16,595
don't necessarily have to wear.

1069
01:06:17,430 --> 01:06:21,654
We juggle projects and multi
task, often alone to enable our

1070
01:06:21,654 --> 01:06:25,878
companies to survive until we
can bring in enough revenue to

1071
01:06:25,878 --> 01:06:29,718
hire additional staff. When we
respond to office actions. Even

1072
01:06:29,718 --> 01:06:31,638
with the representation by an

1073
01:06:31,638 --> 01:06:36,250
attorney. We have to stop what
we're doing to gather the

1074
01:06:36,250 --> 01:06:40,318
evidence or work through with
Council. What we need to do or

1075
01:06:40,318 --> 01:06:44,047
provide to comply in our world.
Six months is doable, but

1076
01:06:44,047 --> 01:06:47,776
compressing that response time
to two months can create on this

1077
01:06:47,776 --> 01:06:52,183
end. A lot of havoc, especially
if we have to turn our attention

1078
01:06:52,183 --> 01:06:55,573
from a major project on a tight
budget and deadline.

1079
01:06:57,090 --> 01:07:01,612
And if we need more time to
respond if we do have to file

1080
01:07:01,612 --> 01:07:04,842
for extensions, I understand
that under the new law there

1081
01:07:04,842 --> 01:07:09,364
will be new fees now to a large
Corporation that this may be a

1082
01:07:09,364 --> 01:07:13,240
normal cost of doing business to
those of us with far fewer

1083
01:07:13,240 --> 01:07:16,147
financial resources. This hurts.
It can hurt a lot.

1084
01:07:16,920 --> 01:07:20,209
We all know the meter is running
on legal fees to. We ask

1085
01:07:20,209 --> 01:07:23,245
ourselves how long is this phone
call? Was it 30 minute minutes

1086
01:07:23,245 --> 01:07:24,257
is in an hour.

1087
01:07:25,190 --> 01:07:29,740
How long is it going to take for
my attorney to write or call

1088
01:07:29,740 --> 01:07:33,965
back? Where is the money going
to come from? That's not in the

1089
01:07:33,965 --> 01:07:37,215
budget to pay for these
additional calls? What if my

1090
01:07:37,215 --> 01:07:41,765
attorney is in the middle of a
trial or other case as a small

1091
01:07:41,765 --> 01:07:45,665
business? Will I get enough of
their time and attention in this

1092
01:07:45,665 --> 01:07:49,890
new short and span? It is a
concern in the secondary of the

1093
01:07:49,890 --> 01:07:52,490
TMI on reexamination and
expungement proceedings. Let me

1094
01:07:52,490 --> 01:07:54,765
just digress for a moment to say

1095
01:07:54,765 --> 01:07:59,203
that. A decade ago, many of us
were encouraged to file in

1096
01:07:59,203 --> 01:08:02,470
multiple classes, multiple
items, and 10s of thousands of

1097
01:08:02,470 --> 01:08:07,189
dollars in filing fees. Later,
we had to move at the speed of

1098
01:08:07,189 --> 01:08:11,182
light on small resources to
create all the products to prove

1099
01:08:11,182 --> 01:08:15,538
use. Some real life examples
would make a great study, a book

1100
01:08:15,538 --> 01:08:19,531
or a documentary. But now it's
my understanding that anyone can

1101
01:08:19,531 --> 01:08:22,435
initiate either the expungement
or reexamination proceeding even

1102
01:08:22,435 --> 01:08:25,702
if they have no legitimate
interest in the registered

1103
01:08:25,702 --> 01:08:29,750
trademark. This can create a
potential for abuse and can be

1104
01:08:29,750 --> 01:08:32,406
even more costly to legitimate
trademark owners, especially

1105
01:08:32,406 --> 01:08:34,398
those who can least afford it.

1106
01:08:35,240 --> 01:08:38,740
Now, having said all that, I
understand the need to

1107
01:08:38,740 --> 01:08:42,940
accomplish the goals in this new
law that was drafted and passed

1108
01:08:42,940 --> 01:08:46,090
with bipartisan support as part
of the Omnibus coronavirus

1109
01:08:46,090 --> 01:08:48,190
relief Bill. So here is 1

1110
01:08:48,190 --> 01:08:52,376
suggestion. Rather than
attacking this just on the back

1111
01:08:52,376 --> 01:08:57,277
end might also be useful to put
more effort on the front end

1112
01:08:57,277 --> 01:09:00,670
that is too extensively educate
first time trademark applicants.

1113
01:09:00,670 --> 01:09:05,194
In short, easy to understand
videos or even better in an open

1114
01:09:05,194 --> 01:09:09,341
online class about what they
will need to do specifically and

1115
01:09:09,341 --> 01:09:13,111
simply to maintain their
trademarks. I did search to find

1116
01:09:13,111 --> 01:09:17,258
this material and saw that there
are now helpful long format

1117
01:09:17,258 --> 01:09:19,143
videos on the USPTO website.

1118
01:09:19,220 --> 01:09:23,257
An now on YouTube, but some
studies show that shorter 6

1119
01:09:23,257 --> 01:09:26,927
to 8 minute YouTube videos
tend to hold our attention

1120
01:09:26,927 --> 01:09:30,230
span better. Again, as you
look at the implementation,

1121
01:09:30,230 --> 01:09:33,533
this is simply another tool
to educate small business

1122
01:09:33,533 --> 01:09:36,469
owners. Trademark attorneys
obviously know all this, but

1123
01:09:36,469 --> 01:09:39,405
we might have better
outcomes all around, less

1124
01:09:39,405 --> 01:09:42,341
expensive and less
frustration. If there was a

1125
01:09:42,341 --> 01:09:45,644
way to add additional
resources on the front end.

1126
01:09:46,720 --> 01:09:49,910
I greatly appreciate your time
and the opportunity to speak

1127
01:09:49,910 --> 01:09:53,738
with you today from Pittsbirgh.
I've learned a lot on my own

1128
01:09:53,738 --> 01:09:55,971
intellectual property journey.
Had some wonderful victories,

1129
01:09:55,971 --> 01:09:59,799
some Hard Knocks, and I usually
don't speak out on issues like

1130
01:09:59,799 --> 01:10:02,690
this, however. I'm taking a
cue from the late Supreme

1131
01:10:02,690 --> 01:10:04,580
Court Justice Ruth Bader
Ginsburg, who quietly

1132
01:10:04,580 --> 01:10:07,280
suggested we should quote
fight for the things that you

1133
01:10:07,280 --> 01:10:11,060
care about, but do it in a way
that will lead others to join

1134
01:10:11,060 --> 01:10:14,840
you. I thank you so much and I
feel this is a very important

1135
01:10:14,840 --> 01:10:15,110
topic.

1136
01:10:18,470 --> 01:10:21,616
Thank you so much for your
comments an for the small

1137
01:10:21,616 --> 01:10:23,046
business perspective. We
appreciate that.

1138
01:10:24,170 --> 01:10:29,330
I understand that the next two
speakers on our list are not

1139
01:10:29,330 --> 01:10:33,200
online and we're still trying to
connect. Angela Grayson.

1140
01:10:33,780 --> 01:10:35,028
Do we have Angela?

1141
01:10:53,170 --> 01:10:55,790
I see Angela Grayson is
trying to connect will give

1142
01:10:55,790 --> 01:10:56,576
her a minute.

1143
01:11:17,050 --> 01:11:18,290
Hi this is Angela.

1144
01:11:19,820 --> 01:11:23,460
We can hear you great a little
bit of drama today, but that's

1145
01:11:23,460 --> 01:11:24,860
par for the course, right?

1146
01:11:25,680 --> 01:11:30,300
Alright, thank you so much for
the technical team working with

1147
01:11:30,300 --> 01:11:34,920
me to help resolve some of my
technical difficulties and I

1148
01:11:34,920 --> 01:11:39,120
want to thank the USPTO for
holding this form for

1149
01:11:39,120 --> 01:11:43,320
stakeholders to discuss. I like
to really mostly share my

1150
01:11:43,320 --> 01:11:47,520
concern around this short and
statutory response period, or as

1151
01:11:47,520 --> 01:11:51,720
you call it, the flexible
response period. I'm also a

1152
01:11:51,720 --> 01:11:56,340
patent practitioner and so on.
The pen side, we are certainly

1153
01:11:56,340 --> 01:11:58,860
used to what we call the.

1154
01:11:58,970 --> 01:12:02,975
Thus, the shortness statutory
period for response. But I'd

1155
01:12:02,975 --> 01:12:07,425
like to echo some of the
sentiments that Susan just

1156
01:12:07,425 --> 01:12:12,320
mentioned. And also I want to
agree with Allison as well

1157
01:12:12,320 --> 01:12:16,325
with regard for possibly
delaying this aspect of the

1158
01:12:16,325 --> 01:12:17,215
Modernization Act.

1159
01:12:18,330 --> 01:12:21,080
I primarily work with um.

1160
01:12:21,780 --> 01:12:26,640
Early stage companies in my
practice at Precipice IP, I've

1161
01:12:26,640 --> 01:12:31,500
had also a fairly lengthy
in-house IP counsel career, but

1162
01:12:31,500 --> 01:12:35,874
currently I spend my time
working in counseling early

1163
01:12:35,874 --> 01:12:42,678
stage companies, and I do a lot
of work in the Community to this

1164
01:12:42,678 --> 01:12:47,538
effect. I'm very concerned that
the shorter period of response

1165
01:12:47,538 --> 01:12:52,398
can really make a lot of havoc
with smaller businesses.

1166
01:12:53,300 --> 01:12:58,701
An anything less than than three
months is is certainly not

1167
01:12:58,701 --> 01:13:04,102
doable in my opinion, although I
understand the need to really

1168
01:13:04,102 --> 01:13:08,521
purge the the roles of bad
actors and fraudulent

1169
01:13:08,521 --> 01:13:12,940
applications that are pending
when you create an opportunity

1170
01:13:12,940 --> 01:13:19,323
for such a quick turn around
time, I think can be very, very

1171
01:13:19,323 --> 01:13:23,251
very disruptive for smaller
enterprises as Susan mentioned.

1172
01:13:23,870 --> 01:13:27,731
There also, there's going to
also be more touch points from

1173
01:13:27,731 --> 01:13:31,241
an attorney perspective, so
there's more of a docketing more

1174
01:13:31,241 --> 01:13:34,751
document events that will have
to happen. These costs will

1175
01:13:34,751 --> 01:13:38,612
potentially get passed down to
the client, will be more touch

1176
01:13:38,612 --> 01:13:43,175
points in terms of reaching out
to the client to say hey, Are

1177
01:13:43,175 --> 01:13:48,440
you ready or no? I'm not ready.
I'd like to get like to go for

1178
01:13:48,440 --> 01:13:52,301
an extension. I mean, it's just
more and more legal fees.

1179
01:13:52,301 --> 01:13:54,407
Obviously if a client is not

1180
01:13:54,407 --> 01:13:59,189
prepared to. While his response
within a short period of time,

1181
01:13:59,189 --> 01:14:03,930
he'll have to purchase more
time, and that's more USPTO

1182
01:14:03,930 --> 01:14:09,533
fees I think. Just in the spirit
of thinking about this from the

1183
01:14:09,533 --> 01:14:12,981
small business perspective and
balancing wanting to purge

1184
01:14:12,981 --> 01:14:15,998
fraudulent applications with
businesses like Susans and

1185
01:14:15,998 --> 01:14:20,739
businesses like the ones I
support, I think this can really

1186
01:14:20,739 --> 01:14:25,911
have a very negative impact, at
least in the short run. With

1187
01:14:25,911 --> 01:14:27,635
regard to these businesses.

1188
01:14:27,980 --> 01:14:33,593
Um? And I think that if the
office is looking to implement

1189
01:14:33,593 --> 01:14:37,916
these rules must do what Allison
said earlier, you know, since

1190
01:14:37,916 --> 01:14:42,632
there's not this mandate to do
so within the 12 months, perhaps

1191
01:14:42,632 --> 01:14:47,741
this is something that might be
pushed off a little bit into the

1192
01:14:47,741 --> 01:14:52,457
future to make way for some of
these other higher priority and

1193
01:14:52,457 --> 01:14:55,601
statutory Lee necessary
rulemaking. But also, you know,

1194
01:14:55,601 --> 01:15:00,317
maybe thinking about sort of the
way. Maybe the patent side looks

1195
01:15:00,317 --> 01:15:05,910
at. Fees on the patent side fees
are assessed based on the size

1196
01:15:05,910 --> 01:15:10,310
of the entity, so there's small.
There's a micro and there's

1197
01:15:10,310 --> 01:15:16,310
large entity fees so that if you
are going to impose a fee on an

1198
01:15:16,310 --> 01:15:19,910
applicant, for example, an
extension of time, then perhaps

1199
01:15:19,910 --> 01:15:25,110
it could be based on the size of
the entity, so that won't

1200
01:15:25,110 --> 01:15:27,910
necessarily negate the
disruption, but it will

1201
01:15:27,910 --> 01:15:29,910
potentially negate how much you

1202
01:15:29,910 --> 01:15:33,754
know money. Small business will
have to come out of pocket.

1203
01:15:40,410 --> 01:15:43,266
Thank you so much Angela.
Appreciate your comments.

1204
01:15:44,410 --> 01:15:45,070
Thank you.

1205
01:15:47,390 --> 01:15:51,110
That is the list.

1206
01:15:52,750 --> 01:15:57,922
Of those who requested to speak
and who are actually online. So

1207
01:15:57,922 --> 01:16:03,094
we've reached the end of our
speaker list, and we have not

1208
01:16:03,094 --> 01:16:07,404
received any additional request
to speak through our email box

1209
01:16:07,404 --> 01:16:12,576
today, so I think we'll move to
closing remarks by Chief Judge

1210
01:16:12,576 --> 01:16:13,438
Rogers Jerry.

1211
01:16:15,040 --> 01:16:20,934
Thank you Amy. I'm not going to
really say very much at all, but

1212
01:16:20,934 --> 01:16:26,828
I did want to kind of follow up
on Erica Rose comment about the

1213
01:16:26,828 --> 01:16:30,196
default judgments, particularly
when we have situations where

1214
01:16:30,196 --> 01:16:34,406
the cancellation petitioner has
done their due diligence and has

1215
01:16:34,406 --> 01:16:39,458
reached the conclusion that they
are very likely to get a default

1216
01:16:39,458 --> 01:16:44,089
judgment if they file for for
cancellation based on non user

1217
01:16:44,089 --> 01:16:45,773
abandonment at the board.

1218
01:16:47,310 --> 01:16:48,600
And let me give you.

1219
01:16:49,810 --> 01:16:53,190
Some context and a little bit of
explanation about how we came up

1220
01:16:53,190 --> 01:16:55,790
with these default judgment
stats that I'm going to talk

1221
01:16:55,790 --> 01:16:56,830
about in a second.

1222
01:16:58,480 --> 01:17:01,923
Couple of years ago, after a
round table discussion about all

1223
01:17:01,923 --> 01:17:03,488
the different things that we

1224
01:17:03,488 --> 01:17:08,376
could do. To safeguard the
integrity of the register, one

1225
01:17:08,376 --> 01:17:13,293
of the things that was discussed
was the possibility of creating

1226
01:17:13,293 --> 01:17:16,869
a expedited cancellation
proceeding at the board that

1227
01:17:16,869 --> 01:17:19,104
would not require a statutory

1228
01:17:19,104 --> 01:17:24,348
change because. While we were
lucky enough to have Congress

1229
01:17:24,348 --> 01:17:28,587
pay attention to trademarks and
to pass the Trademark

1230
01:17:28,587 --> 01:17:33,297
Modernization Act, we didn't
actually expect a few years ago

1231
01:17:33,297 --> 01:17:38,007
at that. Anything like that
would happen. So the board

1232
01:17:38,007 --> 01:17:40,833
commenced a expedited
cancellation pilot program.

1233
01:17:40,833 --> 01:17:44,601
After having a separate
roundtable discussion with the

1234
01:17:44,601 --> 01:17:46,485
members of stakeholder groups

1235
01:17:46,485 --> 01:17:50,698
who express. Their opinions
about how stuck to

1236
01:17:50,698 --> 01:17:54,242
proceeding might work best,
so the cancellation pilot

1237
01:17:54,242 --> 01:17:59,115
was designed to kind of
figure out what the best way

1238
01:17:59,115 --> 01:18:02,216
to expedite treatment of
Nonuse abandonment claims

1239
01:18:02,216 --> 01:18:06,203
would be before the TTB,
under its existing authority

1240
01:18:06,203 --> 01:18:09,747
to hear petitions to cancel
under Section 14.

1241
01:18:11,120 --> 01:18:15,410
Now, one of the questions that
came up during that discussion

1242
01:18:15,410 --> 01:18:19,700
was, well, what are the default
breaks? And we didn't really

1243
01:18:19,700 --> 01:18:24,380
know and we can't easily mine
that data from RIT systems. So

1244
01:18:24,380 --> 01:18:29,450
one of the things that we did
focus on during the two year

1245
01:18:29,450 --> 01:18:34,130
pilot that ran from March 2018
to March 2020 was a labor

1246
01:18:34,130 --> 01:18:37,640
intensive examination of the
types of claims filed in

1247
01:18:37,640 --> 01:18:40,370
cancellation cases. Which ones
go by default?

1248
01:18:40,960 --> 01:18:45,448
And focusing on the nonuse or
abandonment claim cases only. In

1249
01:18:45,448 --> 01:18:49,528
other words, the cancellation
cases that involve only non user

1250
01:18:49,528 --> 01:18:54,424
abandonment and didn't go by way
of default, then we try to

1251
01:18:54,424 --> 01:18:59,320
figure out what can we do to
expedite handling of those cases

1252
01:18:59,320 --> 01:19:01,768
and get them resolved as quickly

1253
01:19:01,768 --> 01:19:07,452
as possible. However, in trying
to identify those cases that

1254
01:19:07,452 --> 01:19:12,033
would present the best vehicles
for an expedited cancellation

1255
01:19:12,033 --> 01:19:17,123
proceeding, we did find that the
default rate in all

1256
01:19:17,123 --> 01:19:18,650
cancellations is 44%.

1257
01:19:19,750 --> 01:19:25,868
It is 49% when there is a non
user abandonment claim and it is

1258
01:19:25,868 --> 01:19:30,675
60% when there is only an
abandonment claim. So going back

1259
01:19:30,675 --> 01:19:32,423
to Erik Broes comment.

1260
01:19:33,060 --> 01:19:35,886
If you've done your due
diligence and you've accurately

1261
01:19:35,886 --> 01:19:39,968
assessed the situation, you have
a 6 in 10 chance by filing an

1262
01:19:39,968 --> 01:19:43,422
abandonment claim of getting a
default judgment, so that can be

1263
01:19:43,422 --> 01:19:46,930
pretty quick. Now Eric
mentioned that it might

1264
01:19:46,930 --> 01:19:48,580
take 90 to 120 days.

1265
01:19:50,500 --> 01:19:54,581
It's probably that's probably
right, and one of the things we

1266
01:19:54,581 --> 01:19:58,291
do want to be careful of is
safeguarding registrations that

1267
01:19:58,291 --> 01:20:00,146
have issued and not entering

1268
01:20:00,146 --> 01:20:04,969
DFU. Judgment too quickly. We do
have the default judgment

1269
01:20:04,969 --> 01:20:10,150
process. Pretty well automated
now, and it should be more and

1270
01:20:10,150 --> 01:20:14,860
more automated as we go forward.
Given the assistance, the

1271
01:20:14,860 --> 01:20:19,570
growing insistence of the office
to get email information and

1272
01:20:19,570 --> 01:20:23,338
correspondence information from
filers and their attorneys, so

1273
01:20:23,338 --> 01:20:29,461
we might be able to squeeze a
little bit more time out of

1274
01:20:29,461 --> 01:20:31,345
those default processing times.

1275
01:20:31,490 --> 01:20:37,658
But we're never going to squeeze
much more than 90 speed down

1276
01:20:37,658 --> 01:20:43,826
much below 91120 days if we have
to investigate means of possibly

1277
01:20:43,826 --> 01:20:49,994
serving the registrant. If we
got an email or a snail Mail

1278
01:20:49,994 --> 01:20:51,536
returned as undeliverable.

1279
01:20:52,100 --> 01:20:56,704
Up this information on the
expedited cancellation pilot I

1280
01:20:56,704 --> 01:21:02,398
come into. Everybody's review is
up on the TTV website. If you go

1281
01:21:02,398 --> 01:21:08,530
to the TTS home page, there is a
drop down menus, TTV, other news

1282
01:21:08,530 --> 01:21:14,662
and the one of the other news
items in the drop down menu is

1283
01:21:14,662 --> 01:21:18,604
an explanation of the expedited
cancellation pilot and the

1284
01:21:18,604 --> 01:21:20,356
results from that pilot.

1285
01:21:21,890 --> 01:21:25,990
And so you can. Look at that
information on our website. I

1286
01:21:25,990 --> 01:21:29,290
will highlight a couple of
things we covered about 200

1287
01:21:29,290 --> 01:21:33,250
cases or again, these are the
ones that didn't go by default.

1288
01:21:34,870 --> 01:21:40,462
But only had a non use or
abandonment claim. Now only 21

1289
01:21:40,462 --> 01:21:46,520
of those 205 cases actually had
to go through what we have heard

1290
01:21:46,520 --> 01:21:52,578
referred to as a long and costly
process for filing a petition to

1291
01:21:52,578 --> 01:21:57,238
cancel. So yes, certain cases,
10% in this instance that

1292
01:21:57,238 --> 01:22:01,432
involved an user abandonment
claims went through a longer

1293
01:22:01,432 --> 01:22:04,228
process, but a great many of

1294
01:22:04,228 --> 01:22:08,180
them. Were resolved 134 of the
205 cases were terminated

1295
01:22:08,180 --> 01:22:12,500
without the need of a decision.
A great many of them settled,

1296
01:22:12,500 --> 01:22:17,900
and so I think one of the things
everyone has to keep in mind as

1297
01:22:17,900 --> 01:22:21,500
we move forward because there
are so many unanswered questions

1298
01:22:21,500 --> 01:22:26,540
that we all have about how TMI
will work in terms of the new

1299
01:22:26,540 --> 01:22:27,260
expungement reexamination

1300
01:22:27,260 --> 01:22:30,210
proceedings. And what?

1301
01:22:30,850 --> 01:22:36,282
Tool in a practitioners tool bag
is going to be the best tool to

1302
01:22:36,282 --> 01:22:37,834
use in a particular

1303
01:22:37,834 --> 01:22:42,068
circumstance. A petition to
cancel at the board. Not that

1304
01:22:42,068 --> 01:22:46,514
I'm asking for a lot more trial
business at the board, but it

1305
01:22:46,514 --> 01:22:50,618
still may be something that will
be a useful tool. Again, if

1306
01:22:50,618 --> 01:22:54,722
you've done your due diligence
and you think you can get the

1307
01:22:54,722 --> 01:22:58,826
default judgment, but it also
may be a useful tool in other

1308
01:22:58,826 --> 01:23:02,930
context if you have a section 18
situation where you are not

1309
01:23:02,930 --> 01:23:06,350
interested in deleting specific
items that are listed in a

1310
01:23:06,350 --> 01:23:08,744
registration, but perhaps you
are interested in.

1311
01:23:09,020 --> 01:23:12,539
Restricting channels of trade or
classes of consumers are

1312
01:23:12,539 --> 01:23:17,622
crafting a limitation onto an ID
that will make way for your mark

1313
01:23:17,622 --> 01:23:21,923
to get on the register. That
might be something that you

1314
01:23:21,923 --> 01:23:27,006
still want to do in a petition
to cancel. Of course, you also

1315
01:23:27,006 --> 01:23:31,307
have, as Amy mentioned earlier,
the option of not limiting your

1316
01:23:31,307 --> 01:23:35,608
petition to just not use for
abandonment claims, and you can

1317
01:23:35,608 --> 01:23:39,127
also consider bringing other
claims. Perhaps that gives you

1318
01:23:39,127 --> 01:23:42,516
more leverage. Perhaps
litigation makes you subject to

1319
01:23:42,516 --> 01:23:46,817
counterclaims. It all has to be
evaluated in terms of figuring

1320
01:23:46,817 --> 01:23:52,291
out what the best tool in your
toolkit is, but I didn't want to

1321
01:23:52,291 --> 01:23:55,810
bring this these options to
everyone's attention and point

1322
01:23:55,810 --> 01:23:59,720
out that we do have this
information about the expedited

1323
01:23:59,720 --> 01:24:03,630
cancellation pilot on our
website for anyone to take a

1324
01:24:03,630 --> 01:24:10,038
look at. Before I go back to
Amy to wrap up today's program,

1325
01:24:10,038 --> 01:24:16,310
I want to just clarify one thing
I alluded to just a few moments

1326
01:24:16,310 --> 01:24:22,134
ago. I mentioned 21 cases out of
the 205 cases in the expedited

1327
01:24:22,134 --> 01:24:26,614
cancellation pilot being tried
on the merits. What I really

1328
01:24:26,614 --> 01:24:32,438
should have said was in 21 cases
the parties agreed to some form

1329
01:24:32,438 --> 01:24:35,126
of ACR that would have resulted.

1330
01:24:35,220 --> 01:24:39,642
In potential trial of those
cases on the merits. In fact,

1331
01:24:39,642 --> 01:24:43,662
half of those cases settled for
the plaintiffs withdrew the

1332
01:24:43,662 --> 01:24:48,084
cases, so we didn't actually
have 21 cases go through the

1333
01:24:48,084 --> 01:24:50,496
pilot an get decided on the

1334
01:24:50,496 --> 01:24:55,440
merits. Rather, we only had
three cases going all the way

1335
01:24:55,440 --> 01:24:59,350
through the pilot and require
final disposition on the merits

1336
01:24:59,350 --> 01:25:04,042
and at the end of the pilot,
there were another nine cases

1337
01:25:04,042 --> 01:25:08,343
that were left in suspended
status, so those might yet be

1338
01:25:08,343 --> 01:25:12,644
decided on the merits, but it's
clearly a very very small

1339
01:25:12,644 --> 01:25:16,945
percentage of all cases that
were in the pilot that were

1340
01:25:16,945 --> 01:25:21,637
tried on the merits or may yet
be tried on the merits.

1341
01:25:22,850 --> 01:25:24,134
That's it for now. Thank you,

1342
01:25:24,134 --> 01:25:28,626
Amy. Thank you Jerry, and now
I'm going to turn back to Tasha,

1343
01:25:28,626 --> 01:25:31,959
who opened our roundtable, and
she's going to close this out

1344
01:25:31,959 --> 01:25:33,171
with some announcements, Tasha.

1345
01:25:34,580 --> 01:25:38,419
Thank you all for attending our
roundtable today. If you have

1346
01:25:38,419 --> 01:25:40,862
additional comments on
implementation of the TMA,

1347
01:25:40,862 --> 01:25:44,003
please email them to us at
tmfeedback@uspto.gov. This round

1348
01:25:44,003 --> 01:25:47,842
table was recorded and the video
along with today's slides will

1349
01:25:47,842 --> 01:25:52,030
be made available on our website
within two to three weeks. We

1350
01:25:52,030 --> 01:25:55,869
will email all that signed up to
attend today's roundtable. Once

1351
01:25:55,869 --> 01:25:59,708
the recording and slides are
available. Thank you so much and

1352
01:25:59,708 --> 01:26:02,151
have a great rest of your day.