37 C.F.R. § 2.81

Post publication

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(a) Except in an application under section 1(b) of the Act for which no amendment to allege use under § 2.76 has been submitted and accepted, if no opposition is filed within the time permitted or all oppositions filed are dismissed, and if no interference is declared and no concurrent use proceeding is instituted, the application will be prepared for issuance of the certificate of registration as provided in § 2.151.

(b) In an application under section 1(b) of the Act for which no amendment to allege use under § 2.76 has been submitted and accepted, if no opposition is filed within the time permitted or all oppositions filed are dismissed, and if no interference is declared, a notice of allowance will issue. Thereafter, the applicant must submit a statement of use as provided in § 2.88.

[54 FR 37594, Sept. 11, 1989, as amended at 73 FR 67770, Nov. 17, 2008; 80 FR 2311, Jan. 16, 2015]

Notes of Decisions

Cited in 5 cases, 1977–2009 · leading case: Kos Pharm., Inc. v. Andrx Corp. Andrx Labs., Inc, 369 F.3d 700 (3rd Cir. 2004).

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Kos Pharm., Inc. v. Andrx Corp. Andrx Labs., Inc, 369 F.3d 700 (3rd Cir. 2004). “37 C.F.R. § 2.81 . Reference to PTO action is more naturally understood as allowance (or denial) of an application rather than publication of a mark, especially where an opposition is filed.”

Globalaw Ltd. v. Carmon & Carmon Law Off., 452 F. Supp. 2d 1 (D.D.C. 2006). “37 C.F.R. § 2.81 . Reference to PTO action is more naturally understood as allowance (or denial) of an application rather than publication of a mark, especially where an opposition is filed.”

Yamaha Int'l Corp. v. Hoshino Gakki Co., Ltd., Assignee of Hoshino Gakki Ten Inc., 840 F.2d 1572 (Fed. Cir. 1988). “37 C.F.R. § 2.81 . However, in the opposition proceeding at issue here, Yamaha argues the board erred in requiring it, as the opposer, to prove that Hoshino’s marks had not acquired distinctiveness.”

Rolls-Royce Motors Ltd. v. a & a FIBERGLASS, INC., 428 F. Supp. 689 (N.D. Ga. 1977). “See 37 C.F.R. §§ 2.81 , 2.151 (1976). The defendant argues that failure to obtain Georgia registration prior to 1975 shows Rolls-Royce’ own awareness that neither the Classic Grill nor Flying Lady is a trademark.”

Trimark USA, Inc. v. Performance Food Grp. Co., LLC, 667 F. Supp. 2d 155 (D. Mass. 2009). “It is undisputed that publication of a mark is not equivalent to its allowance or registration.”

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