Expedited Trademark Applications For COVID-19-Related Goods And Services

Morrison & Foerster LLP

Morrison & Foerster LLP

Recognizing the need for companies to quickly get products to market that might help combat the COVID-19 pandemic, the United States Patent & Trademark Office is now paving the way for shorter examination timelines for qualifying trademark applications. This could prove especially useful in battling the flood of COVID-19-related counterfeit products that have hit the marketplace since the beginning of the crisis.

The Trademark Office typically reviews federal trademark applications in the order that they are filed. Currently, a regular application is examined in approximately two‑and‑a‑half to three months after its filing date. Under the new program, applicants can seek to have their trademark applications examined more quickly. The Trademark Office estimates that this should reduce the time between filing and initial examination by about two months, meaning that applications could be examined in as little as two to four weeks.

To qualify for this program, the application must identify qualifying COVID-19 medical goods or services. Those qualifying goods and services are:

  • pharmaceutical products, medical devices, or personal protective equipment that prevent, diagnose, treat, or cure COVID-19 and are subject to approval by the FDA; and
  • medical services or medical research services for the prevention, diagnosis, treatment, or cure of COVID-19.

So long as an application identifies at least one qualifying good or service, it is eligible for the program, even if it also identifies non-qualifying goods and services.

To apply for the program, an applicant must file a petition accompanied by a declaration and statement of facts demonstrating why the goods or services qualify. The petition is filed after the trademark application has been filed, meaning that those who have already filed new applications can still benefit from the program.

While this expedited process only affects the period between filing and first examination, an applicant can also expedite registration by quickly responding to any office actions or communications from the Trademark Office regarding the underlying application. The average time between filing an application and the Trademark Office issuing a registration, a notice of allowance, or a notice of abandonment currently stands at approximately 10 months.

Although this program may only reduce examination time by about two months, brand owners have little to lose by making use of it. The U.S. Customs and Border Protection (“CBP”) has seen large numbers of COVID-19-related counterfeit products enter the United States, including through online marketplaces as consumers increasingly turn to ecommerce shopping during the pandemic. Recording a U.S. trademark registration with CBP is one of the many ways that brand owners can help protect themselves and prevent consumer confusion. The sooner a brand owner acquires its registration, the sooner it can take advantage of such tools.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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