[Federal Register Volume 85, Number 241 (Tuesday, December 15, 2020)]
[Rules and Regulations]
[Pages 81123-81124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27564]


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DEPARTMENT OF COMMERCE

Patent and Trademark Office

37 CFR Part 2

[Docket No. PTO-T-2019-0027]
RIN 0651-AD42


Trademark Fee Adjustment

AGENCY: United States Patent and Trademark Office, Department of 
Commerce.

ACTION: Final rule; delay of effective date.

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SUMMARY: On November 17, 2020, the United States Patent and Trademark 
Office (USPTO) published in the Federal Register a final rule on 
setting and adjusting trademark fees that is scheduled to go into 
effect on January 2, 2021. This final rule changes the effective date 
of one fee paid by international applicants under the Madrid Protocol 
from January 2, 2021, to February 18, 2021.

DATES: The effective date of 37 CFR 2.6(a)(1)(ii), amended at 85 FR 
73197, November 17, 2020, is delayed from January 2, 2021, to February 
18, 2021.

FOR FURTHER INFORMATION CONTACT: Catherine Cain, Office of the Deputy 
Commissioner for Trademark Examination Policy, at 571-272-8946, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: The USPTO published a final rule (85 FR 
73197, Nov. 17, 2020) that set or adjusted certain trademark fees, as 
authorized by the Leahy-Smith America Invents Act, as amended by the 
Study of Underrepresented Classes Chasing Engineering and Science 
Success Act of 2018. Those fee changes allow the USPTO to continue to 
recover the prospective aggregate costs of strategic and operational 
trademark and Trademark Trial and Appeal Board goals (based on workload 
projections included in the USPTO fiscal year 2021 Congressional 
Justification), including associated administrative costs, and to 
further USPTO strategic objectives by better aligning fees with costs, 
protecting the integrity of the trademark register, improving the 
efficiency of agency processes, and ensuring financial sustainability 
to facilitate effective trademark operations.
    Among the changes in the November 17, 2020 final rule, the USPTO 
amended the fee at 37 CFR 2.6(a)(1)(ii) addressing applications under 
section 66(a) of the Trademark Act, 15 U.S.C. 1141f. This fee, paid by 
international applicants designating the United States under the World 
Intellectual Property Organization's (WIPO) Protocol Relating to the 
Madrid Agreement Concerning the International Registration of Marks 
(Madrid Protocol), is set to increase from $400 to $500.
    This final rule delays the effective date of the change to Sec.  
2.6(a)(1)(ii) because the treaty requires three months advance notice 
to WIPO, which then alerts international applicants, before an increase 
in the amount of the international application/subsequent designation 
fee can enter into force. On November 18, 2020, the USPTO provided WIPO 
with the required notice of the change to Sec.  2.6(a)(1)(ii). Thus, 
the effective date of Sec.  2.6(a)(1)(ii) is delayed from January 2, 
2021, to February 18, 2021, three months following the notification.

Rulemaking Requirements

    A. Administrative Procedure Act: This final rule revises the 
effective date of Sec.  2.6(a)(1)(ii). This action relates to the 
setting or adjusting of trademark fees and is a rule of agency practice 
and procedure and/or an interpretive rule pursuant to 5 U.S.C. 
553(b)(A). See JEM Broad. Co. v. F.C.C., 22 F.3d 32 (D.C. Cir. 1994) 
(``[T]he `critical feature' of the procedural exception [in 5 U.S.C. 
553(b)(A)] `is that it covers agency actions that do not themselves 
alter the rights or interests of parties, although [they] may alter the 
manner in which the parties present themselves or their viewpoints to 
the agency.' '' (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. 
Cir. 1980))); see also Bachow Commc'ns Inc. v. F.C.C., 237 F.3d 683, 
690 (D.C. Cir. 2001) (rules governing an application process are 
procedural under the Administrative Procedure Act); Inova Alexandria 
Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (rules for handling 
appeals were procedural where they did not change the substantive 
standard for reviewing claims). Accordingly, prior notice and 
opportunity for public comment are not required pursuant to 5 U.S.C. 
553(b) or (c) (or any other law). See Cooper Techs. Co. v. Dudas, 536 
F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and 
thus 35 U.S.C. 2(b)(2)(B), do not require notice and comment rulemaking 
for ``interpretative rules, general statements of policy, or rules of 
agency organization, procedure, or practice'' (quoting 5 U.S.C. 
553(b)(A)).
    Moreover, the Director of the USPTO, pursuant to authority at 5 
U.S.C. 553(b)(B) and (d)(1), finds good cause to adopt the change in 
this final rule without prior notice and an opportunity for public 
comment or a 30-day delay in effectiveness, as such procedures would be 
impracticable and contrary to the public interest. Immediate 
implementation of the change to the

[[Page 81124]]

effective date of Sec.  2.6(a)(1)(ii) is in the public interest because 
it will allow the USPTO to meet its obligation under the Madrid 
Protocol to provide three months advance notice to WIPO and to 
international applicants of any changes to international application/
subsequent designation fees. A delay of this final rule to provide 
prior notice and comment procedures and a delay in effectiveness are 
impracticable because they would allow the change to Sec.  
2.6(a)(1)(ii) to go into effect before the agency has provided WIPO 
with the required three-month advance notice, thereby defeating the 
purpose of this rulemaking. Therefore, the Director finds there is good 
cause to waive notice and comment procedures and the 30-day delay in 
effectiveness for this rule.
    B. Regulatory Flexibility Act: As prior notice and an opportunity 
for public comment are not required pursuant to 5 U.S.C. 553 (or any 
other law), neither a Regulatory Flexibility Act analysis nor a 
certification under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.) is required and none have been prepared. See 5 U.S.C. 605(b).
    C. Executive Order 12866 (Regulatory Planning and Review): This 
rulemaking has been determined to be not significant for purposes of 
Executive Order 12866 (Sept. 30, 1993).
    D. Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs): This rule is not an Executive Order 13771 regulatory 
action because this rule is not significant under Executive Order 12866 
(Jan. 30, 2017).

Andrei Iancu,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2020-27564 Filed 12-14-20; 8:45 am]
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