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(d) Registrations and applications to register on the Supplemental Register, registrations under the act of 1920, and registrations of marks the right to the use of which has become incontestable are not subject to interference.

2.92 Preliminary to interference. (a) Before the declaration of an interference, the marks which are to form the subject matter of the controversy must have been decided to be registrable by each party except for the interfering mark.

(b) The Examiner of Trademarks may require an applicant to put his application in condition for publication, within a time specified, not less than thirty days, in order that an interference may be declared. If any such applicant fails to put his application in condition for publication within the time specified, the declaration of interference will not necessarily be delayed.

(c) Whenever it shall be found that two or more parties whose interests are in conflict are represented by the same attorney, the Examiner of Trademarks shall notify each of said parties and also the attorney of this fact.

2.93 Declaration of interference. An interference is declared and instituted by the mailing of a notice of interference to the parties. The notice shall be sent to each applicant, in care of his attorney or agent of record, if any, and if one of the parties is a registrant, the notice shall be sent to him or his assignee of record. The notice shall give the name and address of the adverse party and of his attorney or agent, if any, together with the serial number and date of filing and publication, if published, of each of the applications or registrations involved.

2.94 Interference motions. (a) Motions to dissolve an interference may be brought on the ground (1) that no interference in fact exists, (2) that there has been such irregularity in declaring the same as will preclude a proper determination of the interference, or (3) that an applicant's mark is not registrable.

(b) Any party may bring a motion to add to the interference any other conflicting application which he may own.

(c) Motions under paragraph (a) or (b) of this section shall be made not later than forty days after the notice of interference is mailed and shall contain a full statement of the grounds relied upon. Such motions, if in proper form, will be transmitted to the Examiner of Trademarks for determination. Such transmittal will act as a stay of proceedings pending the determination of the motion. If the motion is not in proper form or if it is not brought with in the time. specified and no good cause is shown for the delay, it will not be considered, and the parties will be so notified. Any brief in support of a motion shall be embodied in or accompany the motion and any statement or brief in opposition to a motion shall be filed within

twenty days after service of the motion; if not so filed, consideration thereof may be refused. Oral hearings will be held only at the request of any of the parties.

2.95 Decision on motion to dissolve. Appeal may be taken to the Trademark Trial and Appeal Board in the manner provided in rules 2.141 and 2.142 from a decision granting a motion to dissolve. No appeal may be had from a decision denying such a motion, but the question may be revieved by the Trademark Trial and Appeal Board in its final decision in the interference.

2.96 Issues; burden of proof. The issue in an interference between applications shall be the respective rights of the parties to registration. The issue in an interference between an application and a registration shall be the same, but in the event the final decision is adverse to the registrant, a registration to the applicant will not be authorized so long as the interfering registration remains on the register. The party whose application or registration involved in the interference has the latest filing date (the junior party) will be regarded as having the burden of proof.

2.97 Enlargement of issue. Any party to an interference may, within fifty days after the notice of intereference is mailed, file a pleading setting forth affirmatively any matter on the basis of which, if proved, the other party would not be entitled to obtain or maintain a registration. Such pleading may request affirmative relief by way of cancellation of a registration involved, but no defense attacking the validity of such registration may be otherwise raised in the proceeding. Such request for affirmative relief must be verified and must be accompanied by the fee as required by section 14 of the act. A reply to such request for affirmative relief is required within twenty days after service thereof, but no reply need be filed to other affirmative defenses.

2.98 Adding party to interference. If, during the pendency of an interference, another case appears involving substantially the same registrable subject matter, the Examiner of Trademarks may request the suspension of the interference for the purpose of adding said case. Such suspension will be granted as a matter of course if no testimony has been taken. If, however, any testimony has been, or is about to be, taken, the case will not be added except upon approval of a member of the Trademark Trial and Appeal Board. If the case is not so added, the Examiner of Trademarks may suspend action on such case pending termination of the interference proceeding, following which an interference may be instituted between such case and the case of the party prevailing in the first interference.

2.99 Application to register as concurrent user. (a) An application for registration as a lawful concurrent user will be examined in the same manner as other applications for registration. When it is

determined that the mark is ready for publication or allowance, except for questions relating to concurrent registration, the applicant may be required to furnish as many copies of his written application, specimens and drawing, as may be necessary. The Examiner of Trademarks shall prepare notices for the applicant and for each applicant, registrant, or user specified in the application for registration as a concurrent user. Such notices for the specified parties shall give the name and address of the applicant and of his attorney or agent, if any, together with the serial number and filing date of the application.

(b) The notices shall be sent to each of the parties, in care of their attorneys or agents, if they have attorneys or agents of record, and if one of the parties is a registrant, a notice shall also be sent to him or his assignee of record. A copy of the application shall be forwarded with the notices to the parties specified in the application. An answer to the notice is not required in the case of an applicant or registrant whose application or registration is specified in the application to register as concurrent user but a statement, if desired, may be filed within forty days after the mailing of the notice; in the case of other parties specified in the application to register as concurrent user, answer must be filed within forty days after the mailing of the notice. (c) The procedure shall follow the practice in interference proceedings insofar as it is applicable and the time limitations prescribed in such practice shall be applicable herein.

(Sec. 2, 18, 60 Stat. 428, 434; 15 U.S.C. 1052, 1068)

OPPOSITION

AUTHORITY NOTE: Rules 2.101 to 2.106 interpret or apply secs. 13, 17, 60 Stat. 433, 434; 15 U.S.C. 1063, 1067.

2.101 Time for filing opposition. Any person who believes that he would be damaged by the registration of a mark upon the Principal Register may, upon payment of the required fee, oppose the same by filing a verified opposition in the Patent Office within thirty days after the publication (rule 2.81) of the mark sought to be registered.

2.102 Extension of time. A request to extend the time for filing an opposition must be received in the Patent Office before the expiration of thirty days from the date of publication, and should be accompanied by a showing of good cause for the extension requested and specify the period of extension desired. In the event circumstances do not permit submission of such showing of good cause with the request, it should be furnished as promptly as possible and, in any event, within ten days after submission of such request.

2.103 Opposition filed by attorney or agent. An unverified opposition may be filed by a duly authorized attorney or agent. The unverified opposition and the required fee must be filed in the Patent

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Office within thirty days after publication (rule 2.81) of the mark sought to be registered, but such opposition will be null and void unless verified by the opposer and the verification or verified opposition filed in the Patent Office within thirty days after such filing, or within such further time after such filing as may be fixed by the Commissioner upon request made before the expiration of said thirty days.

2.104 Contents of opposition. The opposition must allege facts tending to show why the opposer would be damaged by the registration of the opposed mark and state the specific grounds for opposition. A duplicate copy of the opposition including exhibits shall be filed.

2.105 Institution of opposition. (a) When an opposition is filed, the Examiner of Trademarks shall transmit the same, if regularly filed, to the Trademark Trial and Appeal Board.

(b) A notice shall be prepared, identifying the title and number of the proceeding and the application involved, and designating a time, not less than thirty days from the mailing date of such notice, within which answer must be filed. Copies of this notice shall be forwarded by the Trademark Trial and Appeal Board to the parties in care of their attorneys or agents, if they have attorneys or agents of record. The duplicate copy of the opposition and exhibits shall be forwarded with the notice to the applicant.

2.106 Answer. (a) If no answer is filed within the time set, the opposition may be decided as in case of default.

(b) An answer may contain any defense, and it may also contain a request for affirmative relief by way of cancellation of a registration pleaded in the opposition; but no defense attacking the validity of such registration may be otherwise raised in the proceeding. Such request for affirmative relief must be verified and must be accompanied by the fee as required by section 14 of the act. A reply to such request for affirmative relief is required within twenty days after service thereof, but no other reply to the answer need be filed.

(c) The opposition may be withdrawn without prejudice before the answer is filed. After answer is filed the opposition may not be withdrawn without prejudice except with the consent of the applicant.

2.107 Amendment of opposition. An opposition may be amended in the same manner and to the same extent as a complaint in a civil action before a United States district court. See Rule 15 of the Federal Rules of Civil Procedure,

CANCELLATION

AUTHORITY NOTE: Rules 2.111 to 2.114 interpret or apply secs. 14, 17, 24, 60 Stat. 433, 434, 436; 15 U.S.C. 1064, 1067, 1092.

2.111 Time for filing petition for cancellation. Any person who believes that he is or will be damaged by a registration may, upon payment of the required fee, apply to the Commissioner to cancel said

or

registration. Such petition may be made at any time in the case of registrations on the Supplemental Register or under the act of 1920, registrations under the act of 1881 or the act of 1905 which have not been published under section 12(c) of the act (rule 2.153), and in cases involving the grounds specified in section 14 (c), (d) and (e) of the act. In all other cases such petition must be made within five years from the date of registration of the mark under the act of 1946 or from the date of publication under section 12(c) of the act.

2.112 Petition for cancellation. The petition to cancel, which must be verified, must allege facts tending to show why the petitioner believes he is or will be damaged by the registration, state the specific grounds for cancellation, and indicate the respondent party to whom notice shall be sent. A duplicate copy of the petition, including exhibits, and an order for a title report for Office use (or an abstract of title) of the mark sought to be cancelled shall be filed with the petition. Applications to cancel different registrations owned by the same party may be joined in one petition when appropriate, but the fee for each application to cancel a registration must accompany the petition.

2.113 Notice of filing of petition. (a) When a petition for cancellation is filed, it shall be transmitted to the Trademark Trial and Appeal Board, which shall make examination thereof to determine if it is formally correct. If the petition is found to be defective as to form, the party filing the same shall be so advised and allowed a reasonable time for correcting the informality.

(b) When the petition is correct as to form a notice shall be prepared, identifying the title and number of the proceeding and the registration involved, and designating a time, not less than thirty days from the mailing date of such notice, within which answer must be filed. A copy of this notice shall be forwarded to the petitioner in care of his attorney or agent, if he has an attorney or agent of record. The duplicate copy of the petition and exhibits shall be forwarded with a copy of such notice to the registrant.

2.114 Answer. (a) If no answer is filed within the time set, the petition may be decided as in case of default.

(b) An answer may contain any defense, and it may also contain a request for affirmative relief by way of cancellation of a registration pleaded in the petition; but no defense attacking the validity of such registration may be otherwise raised in the proceeding. Such request for affirmative relief must be verified and must be accompanied by the fee as required by section 14 of the act. A reply to such request for affirmative relief is required within twenty days after service thereof, but no other reply to the answer need be filed.

(c) The petition for cancellation may be withdrawn without prejudice before the answer is filed. After the answer is filed the petition

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