On June 15, the United States Patent and Trademark Office (USPTO) announced the COVID-19 Trademark Prioritized Examination Program. The new initiative allows entities with certain COVID-19-related goods or services to file a petition to the Director to fast-track their trademark applications.
The United States Patent and Trademark Office recently introduced a new program that allows applicants to ask for an expedited application. Usually, the USPTO reviews application in the order they are received, with very few exceptions. However, the new program would allow applicants filing for some medical equipment and services to seek a faster review of their trademark applications.
Only Products Requiring FDA Approval Qualify for This Program (and COVID-related Medical Services)
Starting June 16, 2020, applicants seeking registration for one of more of the following can apply for “expedited” examination:
“COVID-19 medical-related goods or services: pharmaceutical products or medical devices such as diagnostic tests, ventilators, and personal protective equipment, including surgical masks, face shields, gowns, and gloves, that prevent, diagnose, treat, or cure COVID-19 and are subject to approval by the United States Food and Drug Administration; and medical services or medical research services for the prevention, diagnosis, treatment of, or cure for COVID-19.”
This would include any products – face shields, wipes, ventilators, masks, etc. – that can be used in the treatment, prevention, or cure of COVID-19 AND which are subject to FDA requirements. This would also include any medical treatment, prevention, or cure as a service.
So, for example, many masks worn by doctors, nurses, or medical professionals may qualify, but cloth masks that the general public wears would not be covered.
The USPTO has clarified that it would allow an entire application to be expedited, even if only one of the items in the identification qualified for the program. So if a mask manufacturer is doing both FDA-approved equipment and a line of consumer masks, the entire application would be permitted to proceed.
Expedited Review Allows Applicants To Save 3-4 Months of Processing Time
The goal of this program is to provide companies working on COVID-19 products a way to quickly ‘clear’ their brand names associated with those products.
Usually, an applicant would need to wait 3-4 months for the initial review of the application by the examining attorney. Then, it typically takes another 6-9 months for a registration to issue.
The petition, once granted, will skip the 3-4 month waiting period and move an application directly to an examining attorney.
The Registration Process Will Still Take a Least 6 Months, Even With Expedited Review
While the expedited process will lessen the length of time it takes to obtain a trademark registration overall, the processing time would still be at least six months in order to obtain a registration from the USPTO. There are some timing requirements that cannot be changed, such as the “Opposition Period,” a 30-day period where a third party can oppose a registration they believe will damage their rights. Further, the USPTO’s procedure requires significant administrative time to review and process, which limits the usefulness of an expedited filing.
You Must File a Petition to the Director to Qualify for the Program
If an applicant qualifies for the program, an applicant must first their application and then file a separate Petition to the Director. The USPTO will not automatically prioritize all applications that fulfill the COVID-19 Priority requirements.
However, the usual $100 Petition to the Director fee will be waived, so while this is an extra step, there is no additional filing cost. Included within the Petition to the Director must be a statement of facts and an affidavit declaring that the applicant’s goods or services are a type that qualifies for priority.
Filings Made Under the USPTO’s COVID-19 Expedited Filing Program
The following is a list of all the filings made under the COVID-19 expedited filing program.
This list was last updated July 28, 2020.
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