Anisha Kingra Discusses USPTO Final Rule Setting Trademark Fees

By Anisha Kingra

The U.S. Patent and Trademark Office (USPTO) has published its final rule setting trademark fees that will take effect on January 18, 2025. The fee adjustments are designed to facilitate the USPTO’s implementation of the objectives set forth in the USPTO’s 2022-2026 Strategic Plan. The Strategic Plan seeks to reduce processing times for pending trademark applications, enhance customer experience, and phase out reliance on costly legacy IT systems in favor of a modern infrastructure that adapts to technological innovations.

In the final rule, the USPTO acknowledged receipt of several comments during the rulemaking process. Those comments expressed concern with the proposed fee adjustment given that the USPTO recently increased trademark fees in 2021 but processing times for trademark applications had not decreased. Trademark applications are typically examined 6-8 months after the time of submission and register 13 months after submission. Stakeholders were thus concerned that another increase to the trademark fee schedule may not achieve the goal of reducing processing times. In response, the USPTO noted that the processing delays are attributable to an unprecedented increase in trademark application filings during Fiscal Year 2021. The USPTO is still addressing the impact of that influx and asserts an increase in the fee schedule will support its efforts to effectively administer the trademark system. The USPTO also noted that it considered a proposal that would implement a flat 27% increase of all fees but rejected this proposal in favor of a rule with targeted fee adjustments that would incentivize users to file more efficient and complete applications.

The charts below set forth the current and new fees for trademark applications, post-registration maintenance filings, and other filings (e.g., letters of protest, petitions to revive, etc.).

Single Base Application

The final rule provides a single base application for § 1 and § 44 applications. The USPTO will discontinue the current Trademark Electronic Application System (TEAS) Standard and Plus application filing options. Applicants can file a single base application for $350 per class.

Filing Surcharge Fees – Entering Identifications of Goods and Services in the Free-Form Text Box

Under the new rule, § 1 and § 44 applications will incur a $200 fee per class for manually entering identifications in the free-form text box. To avoid the surcharge, Applicants may use the USPTO’s Acceptable Identification of Goods and Services Manual (ID Manual) within the electronic application’s drop-down menu when filing applications. The goal of this rule is to streamline the application review process. The USPTO explained that Examining Attorneys need to closely review manually entered identifications even when an Applicant types language into the text box that is identical to language listed in the ID Manual because the attorneys do not know where deviations can occur. In contrast, Examining Attorneys can quickly review and process identifications that are directly selected from the ID Manual. The surcharge is intended to cover the costs associated with Examining Attorneys expending substantial time reviewing free-form identifications and communicating with Applicants to reach acceptable identifications. For more information, see here.

Filing Surcharge Fees – Fees Incurred for Exceeding 1,000 Character Limit

The new rule provides that § 1 and § 44 applications have a 1,000 character limit (including punctuation and spaces) for the identification of goods and services in the free-form text box. A $200 fee will be charged for each additional group of 1,000 characters (including punctuation and spaces) beyond the first 1,000 characters. Importantly, Applicants who enter identifications directly from the ID Manual will not incur this fee, even if the identification exceeds 1,000 characters. For additional information, see here.

Filing Surcharge Fees – Insufficient Information

Applications filed under § 1 and § 44 will also incur a $100 fee per class for insufficient information required in the base application. The insufficient information surcharge will apply if an application fails to provide:

• Applicant’s Name and Domicile Address;
• Citizenship of each individual applicant, or the state or country of incorporation or organization of each juristic applicant;
• A digitized image of the mark (if Applicant does not claim standard characters). If the mark includes color, the drawing must show the mark in color;
• If the mark is in standard characters, a mark comprised only of characters in the Office's standard character set, typed in the appropriate field of the application;
• If the mark includes color, a statement naming the color(s) and describing where the color(s) appears on the mark, and a claim that the color(s) is a feature of the mark;
• If the mark is not in standard characters, a description of the mark;
• If the mark includes non-English wording, an English translation of that wording; and
• An applicant whose domicile is not located within the United States or its territories must designate an attorney as the applicant's representative, pursuant to § 2.11(a), and include the attorney's name, postal address, email address, and bar information.

For a complete list of requirements for a base application, please see here.

66(a) applications

Under the final rule, § 66(a) applications will be charged $600 per class (an increase from the current $500 fee per class).

Intent-To-Use Filings

The fees for amendments to allege use and statement of use will also increase as shown in the chart above. The current fees have not increased since 2002 and the costs of processing such filings have increased due to inflation and application complexity.

Post-Registration Maintenance Filings

Renewal fees under § 9, and declaration fees under § 8, § 15, and § 71 are also set to increase as shown in the chart above.

Letters of Protest

Fees for submitting a Letter of Protest (LOP), petition to the Director of the USPTO, and/or a petition to revive a trademark application will increase to recover costs associated with extensive and lengthy reviews.

Looking Forward

Under the new rule, the USPTO seeks to reduce application processing times by incentivizing Applicants to submit identifications of goods and services that conform to the ID Manual. The filing fees may incentivize Applicants to consider whether to submit free-form descriptions or descriptions from the ID Manual and consider character limits for lengthy identifications to avoid incurring substantial fees particularly if Applicants have several pending applications with free-form and/or length identifications of goods and services.

If the USPTO successfully reduces application processing times, the office could also consider implementing a fast-track application review process where an Applicant could pay a fee to have their applications placed on an expedited review track. Given that the USPTO is a customer-facing agency, this option may be worth considering and placing into the notice-and-comment rulemaking process for stakeholders to weigh in on.

Anisha Kingra
Associate