On November 18, 2024, the USPTO issued its Final Rule relating to increases in its trademark filing fees for Fiscal Year 2025.  Setting and Adjusting Trademark Fees During Fiscal Year 2025, 89 Fed. Reg. 91062 (Nov. 18, 2024) (to be codified at 37 C.F.R. pts. 2, 7) (“Final Rule”).  This Final Rule sets or adjusts 28 trademark fees and introduces 7 new fees that had previously not existed.  A number of the re-set fees relate to paper filings, which account for less than 1% of new filings overall (see Final Rule at 91076 – Response to Comment 28), and will not be covered by this post as a result.  Instead, this post will focus on the “electronic filing” fees and, specifically, these new “surcharges” that are explained in more detail in this Final Rule.

Executive Summary

A table showing pertinent changes imposed by this Final Rule appears below – with more details discussed in later sections.  The changes to the Letter of Protest Fees and Post-Registration Maintenance Fees in the Rule are fairly straightforward – justified by specific economic considerations that are outlined in the rule.  As a result, this post will not address those changes – except to note what the new fees will be.

The USPTO published a quick summary of these rule changes:  USPTO’s Summary of 2025 Trademark Fee Changes and a 30-page Slide Deck with additional details (Final Rule: At a Glance).

Effective Dates: 

• January 18, 2025 for most changes.
  • Generally covers only new applications filed after this date; BUT
  • Also covers TEAS Plus applications filed prior to Jan. 18, 2025 that failed to comply with the requirements of TEAS Plus when filed (e., additional filing fees would have been assessed under the current system to convert the application to TEAS Standard).
• February 18, 2025 for new international applications or subsequent designations filed through WIPO (Section 66 applications);
• Surcharges will not be imposed on Madrid applications yet – but could be added later once WIPO develops a system for assessing surcharges at the time of filing.

Clarifications Regarding Impositions of the Surcharges

In response to the March 2024 Notice of Proposed Rule Making (NPRM), the USPTO “received comments from seven IP organizations, one government agency and 19 individuals, law firms, and other organizations.”  Final Rule: At a Glance at 3.  Some of those commenting on the NPRM asked for clarification about how these new surcharges would work – this Final Rule answers those questions and provides some additional guidance to trademark attorneys and their clients.  Highlights of the USPTO’s responses to those comments in the Final Rule are summarized below, grouped by topic.

1. General Comments

• The USPTO’s new Trademark Center allows applicants (and their counsel) to see how edits they make to these applications will change the filing fee charged – and can dynamically respond as needed to lower their potential fees.
  • By the time the fee changes become effective, it is expected that Trademark Center will be mandatory – and that TEAS filings will no longer be available. See, e.g., “Trademark Center beta is here” (last updated Nov. 16, 2024) (noting that applicants have the option to file “in either Trademark Center or TEAS until January 2025”) (emphasis added).
  • The Rule also reports that “The USPTO expects that, in most cases, any incurred surcharges will be assessed and known to the applicant upon submission of the initial application.” Final Rule at 91072 (Response to Comment 5).
  • And, “. . . Prior to submitting their applications, applicants will be presented with the entire application cost – including surcharges – and have the opportunity to provide complete information and identifications from the ID manual or custom identifications that are 1,000 characters or fewer in length, thus avoiding the surcharges.” Id. at 91075 (see also Response to Comment 21).
  • The USPTO expects that “a majority” of filers will avoid the surcharge fees because they will “provide all required information, select their identifications from the ID Manual, and not exceed the 1,000 character limit for each class.” See, e.g., Id. (Response to Comment 19).
• The USPTO justified these targeted increases as “below the unit cost of those services to encourage broader use of IP-rights protection mechanisms” and a superior option to simply increasing USPTO filing fees by 27% across the board. Id. at 91074 (Response to Comment 13).
• In response to a comment from the SBA, the USPTO noted that an applicant may request that the USPTO review situations where the agency has acted inconsistently – such as when the USPTO has addressed a substantive or procedural issue “in a significantly different manner in different cases”. Id. at 91077 (Response to Comment 36); see also USPTO’s Consistency Initiative Page.

2. Insufficient Information Fee

• At base, this fee will be imposed any time a Section 1 or Section 44 application does not meet the requirements of 37 C.F.R. 2.22(1) through (20), which the USPTO is redesignating collectively as “minimum requirements” for a “base application”.
• Some examples of these minimum requirements are as follows:
  • A signature on the application that meets the USPTO’s signature requirements;
    • One commenter noted the common practice of filing an application without signature in order to obtain the filing date – but the Insufficient Information Fee will be assessed in this instance. Final Rule at 91078 (Comment 41 and Response).
  • Any translations/transliterations of the mark, if the mark has a meaning in a foreign language;
    • Lack of knowledge of the non-English meaning of a term is not sufficient to avoid the fee – even if the applicant made a good faith attempt to meet the requirement. “[Section] 2.32(a)(9) requires an applicant to research a mark that is comprised of or includes non-English wording to determine whether there is a transliteration or translation of the wording.”  Id. (Response to Comment 40).
    • In contrast, if an applicant includes a translation or transliteration that the Examiner later requires be edited, the Insufficient Information Fee will not be charged. Id.
  • Designation of a U.S. attorney if the applicant is not domiciled in the U.S.;
  • Identification of any other marks owned by the applicant for the same mark; and
  • Correctly classified goods and services. (For the full list, see Final Rule at 91069).
• Only applies to applications filed after the effective date, except that this fee will be imposed on any then-pending applications originally filed under TEAS Plus that did not meet the TEAS Plus requirements when filed. Final Rule at 91074 (Comment 17 and Response)
  • This is consistent with the current practice of charging the extra fee to convert a TEAS Plus application into a TEAS Standard application if the base filing requirements were not met.
• This fee is assessed on a per class basis (for all classes in an application) not on a per requirement basis, “regardless of the number of requirements an applicant fails to satisfy.”  Final Rule at 91077 (Response to Comment 35).
  • Specifically, this fee is imposed on the entire application, and calculated based on the number of classes in the application. Id. at 91078 (Response to Comment 38) (“Any unmet requirements in a submitted application complicate the examination of every class claimed in the application.”).
• This fee will be charged if an applicant for a use-based application submits a specimen that shows a materially different mark than what appears on the drawing page for the application.  Id. at 91077 (Response to Comment 35) (“If the mark on the specimen and the drawing are materials different, the applicant has, in effect, failed to submit a specimen showing use of the mark sought to be registered.”).
• When this fee will not be imposed:
  • If the applicant uses the ID manual but enters the “fill in” information in a way the Examining Attorney does not accept.  Final Rule at 91077 (Comment 34 and Response).
    • However, the applicant will be charged an Insufficient Information fee “if they leave the fill-in-the-blank element empty, insert information that is clearly inappropriate for the selected identification or insert additional goods and/or services unrelated to the selected identification.” Id. at 91077 (Response to Comment 34)
    • For instance, entering an ID that says “processed meat, namely laptops” or “bicycle parts, namely bicycle parts” will incur the Insufficient Information Fee.

3. Use of Free-Form Text Box to Draft Identifications of Goods/Services

• The USPTO takes great pains to confirm that imposing this fee to use a free-form text box for drafting the applicable goods/services for an application should not be seen as an indication that custom IDs are not acceptable. Instead, this new fee simply recognizes the extra time required for an Examining Attorney to examine customized IDs to determine whether they are acceptable.  Final Rule at 91074 (Response to Comment 16).
  • Applicants are encouraged to conduct detailed searches of the ID Manual before opting to use the Free-Form Text Box. Id. at 91079 (Response to Comment 50).
  • If there are no applicable IDs in the ID Manual, interested parties may submit suggestions for new IDs to the TM ID Suggestion Mailbox. Final Rule at 91078 (Response to Comment 48).
    • An Administrator will inform the party whether their suggestion has been accepted within 1-2 business days. If it has been accepted, the ID generally will appear in the ID Manual during the next weekly update.
  • Note: This fee will be imposed any time text is typed or pasted in to the free-form text box, even if it matches acceptable IDs from the ID Manual.  Id. at 91070 (“Examining attorneys must review each entry to determine its acceptability, even in situations where an applicant types or pastes the ID Manual identification, because they do not know if wording in the free-form text box came from the ID Manual.”).
    • Essentially, the Examining Attorney would not be able to tell that a custom ID entered into this free-form field is identical to a pre-approved ID in the ID Manual until undertaking the necessary research to confirm whether the ID is acceptable. At which point, it is understandable that the USPTO seeks to recover the costs of the research to validate the IDs asserted in the application.
  • This fee will also be imposed when an application is amended to add a class that was included in the free-form text box, but was not paid for separately. Final Rule at 91078 (Response to Comment 43); AND
    • When the Examining Attorney determines that applicant “failed to submit an identification from the ID Manual.” Id.(Response to Comment 43).

4. Character Count Surcharge for Excessive Characters in the Identification of Goods/Services

• This new surcharge will only be assessed against IDs created using the Free-Form Text box and only when:
  • The number of characters in the Free-Form Text Box exceeds 1,000 characters (including punctuation and spacing). Final Rule at 91070.
  • Note that each set of 1,000 characters above the initial 1,000 characters (including punctuation and spacing) will be assessed a separate $200 fee per class. (For illustration purposes, an ID that contains 2,002 characters including punctuation and spaces would be assessed a $400 fee for two sets of the character count surcharge.)  Id.
• Will not be imposed (when):
  • An applicant uses the pre-approved IDs from the ID Manual, no matter how many characters are used in a single class.
    • Final Rule at 91070 (“Applicants who enter identifications directly from the ID Manual within electronic applications will not incur this fee even if the identification exceeds 1,000 characters.”)
    • Id. at 97078 (Response to Comment 48: “Items selected from the ID Manual will not be subject to the character limit surcharge.”).
    • Id. at 91079 (Response to Comment 54: “The character count surcharge will apply only to free-form descriptions only. It will not apply to items selected from the ID Manual within the electronic application, including fill-ins.”).
  • An applicant who amends an ID in response to an Office Action in a way that exceeds the character limit will not be charged the character count surcharge fee. Id. at 91070.
    • Similarly, this fee will not be imposed on an applicant who is required to amend an ID to avoid a 2(d) refusal, to avoid an opposition or to resolve a litigation matter in a way that results in ID exceeding 1,000 characters. Id. at 91079 (Response to Comment 53).
  • If an applicant uses the ID Manual to draft their goods/services – and the ID is later modified to incorporate exclusionary language to overcome a refusal or challenge by a third-part – that additional text will not cause the applicant to incur either the insufficient information fee or the character count surcharges. Id. at 91078 (Response to Comment 44).

Effective Dates

Most of these trademark fee increases/new fees will go into effect on January 18, 2025 – particularly for applications/registrations filed under Sections 1 or 44 of the Trademark Act.  See also Final Rule at 961074 (Response to Comment 17).

Due to certain treaty obligations under the Madrid Protocol, however, the increase in fees for international applications initially filed under WIPO designating the U.S. (under Section 66 of the Trademark Act) or subsequently designating to the U.S. will not take effect until February 18, 2025, given the treaty’s requirement of three months’ advance notice of any fee increases.  Id. at 91068-69.

Similarly, the new surcharges outlined in this Final Rule are not going to be assessed against Madrid applications at this time due to WIPO’s inability to collect additional fees for these surcharges at the time of filing.  Id. at 91068.  WIPO requested delayed implementation of such surcharges until it can create the appropriate IT systems to collect the fees at the outset.  Id.  Accordingly, the USPTO has raised the base application filing fee for Section 66 applications (and subsequent designations) to a flat $600 per class fee until such time as WIPO can “develop the capacity to implement surcharges,” when the USPTO will reconsider the fee structure for Madrid applications. Id.

Attending TPAC’s November 22, 2024 Public Hearing

This topic will likely be addressed at some point during the Trademark Public Advisory Committee’s (TPAC’s) quarterly meeting on Friday, November 22, 2024, which begins at 11:00 am ET.  The meeting will be livestreamed to the public (advanced registration is required) and transcripts of the meeting  will be made available on the USPTO’s TPAC Page.  Typically, it takes a few weeks before transcripts are uploaded to the USPTO’s site.

Other Resources for Further Information:

• USPTO’s Current Fee Table for Trademark Filings
• Prior Post, USPTO Proposes New Trademark Filing Fees and Requests Public Comment, Privacy and IP Law Blog (May 21, 2023) (discussing initial Notice of Proposed Rule Making issued on May 8, 2023).
• USPTO’s Fee Setting and Adjustment Page, including supporting documentation relating to November 18, 2024 Final Rule, such as:
  1. Detailed Slides explaining revised (and new) fees – “Final Rule: At a Glance”
  2. Small Entity Compliance Guide – intended as a resource, not as binding authority
  3. Comparisons of Unit Fees against Budgeted Fees.
• USPTO’s Trademark Public Advisory Committee meetings page – particularly the meeting on November 22, 2024.