Applicant’s Appeal Brief

The applicant must file an appeal brief within sixty

days of the date of the appeal, or the Trademark Trial and Appeal Board (Board) may

dismiss the appeal.

37 C.F.R. §2.142(b)(1)

;

see

In re Live Earth Prods. Inc.

, Ser. No. 75158878, 1998 TTAB LEXIS

437, at *4 (1998). If the appeal is dismissed, the applicant may file a motion with

the Board to set aside the dismissal and accept a late-filed brief. Applicant may

also file a motion to accept a late-filed brief when the time for filing the brief

has expired but the Board has not yet issued an order dismissing the appeal. If the

Board denies the motion, the applicant may file a Petition to Director under

37 C.F.R. §2.146

in the trademark electronic filing system,

requesting that the Director review the Board’s action. The Director will reverse the

Board’s action only if the Board clearly erred or abused its discretion. An applicant

should not file a Petition to Director until it has

first

filed a

request/motion to accept the late-filed brief with the Board, and the Board has

denied the request/motion.

TBMP §1203.02(a)

. The applicant may not

file a petition to revive under

37 C.F.R.

§2.66

when an appeal is dismissed for failure to file a brief.

TMEP

§1714.01(f)(ii)(E)

.

The date of appeal for purposes of calculating the due

date of the appeal brief is the date on which the notice of appeal and filing fee is

received by the USPTO. If the applicant has also filed a request for reconsideration

under

37 C.F.R. §2.63(b)(3)

, the Board will

acknowledge receipt of the appeal and request, suspend further proceedings (including

applicant’s time for filing its appeal brief), and remand the application to the

examining attorney. See

TBMP §1203.02(a)

and

§1204

for further information

of appeal and filing fee is

received by the USPTO. If the applicant has also filed a request for reconsideration

under

37 C.F.R. §2.63(b)(3)

, the Board will

acknowledge receipt of the appeal and request, suspend further proceedings (including

applicant’s time for filing its appeal brief), and remand the application to the

examining attorney. See

TBMP §1203.02(a)

and

§1204

for further information. The filing

of a request for reconsideration within the time provided for responding to the final

Office action (

see

TMEP §711

) will automatically result in a suspension of

the appeal, and an applicant need not file either its appeal brief or a request for

an extension of time to file the brief.

See

TBMP §1204.

The applicant’s brief may not exceed 25 double-spaced

pages in length, and should meet the requirements of

37 C.F.R.

§2.126

.

37 C.F.R.

§2.142(b)(2)

;

TBMP §1203.01

;

see

In re Dimarzio, Inc.

, Ser. No. 87213400, 2021 TTAB LEXIS 457, at

*6-7 (2021) (Board refused to consider applicant’s 16-page single-spaced brief which

“would undoubtedly exceed 25 pages if [a]pplicant used double-spaced text, as

required”);

In re Thomas

, Ser. No. 78334625, 2006 TTAB LEXIS 135

(2006) (Board refused to consider applicant’s 29-page brief).

If an applicant, in its appeal brief, does not assert

an argument made during prosecution, such argument may be deemed waived by the Board.

See

In re Katch, LLC

, Ser. No. 86301765, 2019 TTAB LEXIS 154, at *3-4

(2019);

TBMP §1203.02(g)

.

Similarly, if an applicant's brief attempts to incorporate by reference an argument

made during prosecution, such argument may be deemed to have been forfeited.

In re Princeton Equity Grp. LLC

, Ser. No. 97397212, 2025 TTAB

LEXIS 242, at *9 (2025).