USPTO leaves lowest TM filing fee out of final rule effective on January 31, 2005

Posted by J. Matthew Buchanan

January 20, 2005

The Consolidated Appropriations Act of 2005 (Pub. L. 108–447) (which includes some of the provisions of the Patent and Trademark Fee Modernization Act) adjusts trademark filing fees to $375 for paper applications and $325 for electronic applications (per class).

The Act also creates a third category: an electronic application that meets “…certain additional requirements prescribed by the Director….” These applications are entitled to a filing fee of $275 per class.

Yesterday, the Patent and Trademark Office issued its final rule implementing the changes to the trademark filing fee system. The rule establishes an effective date (January 31, 2005) for the $375/$325 structure, but does not prescribe the certain additional requirements necessary for the $275 fee.

As for the $275 fee, the rule states:

The Director will not prescribe rules for electronic applications that qualify for a filing fee of $275.00 until the Office deploys the information technology systems necessary to process these applications. Electronic applications in this third category will have additional filing date requirements. Fed. Reg. 70:12 (January 19, 2005), p.2952.

The enabling language of the Act gives the Director discretion as to which applications are entitled to the lower fee, but it is unclear what discretion the Director has regarding when the lower fee will be made available:

During fiscal years 2005 and 2006, under such conditions as may be prescribed by the Director, the fee under [section] 31(a) of the Trademark Act…for…the filing of an electronic application meeting certain additional requirements prescribed by the Director shall be $275.

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