The applicant must file an appeal brief within sixty days of the date of the appeal, or the Trademark Trial and Appeal Board (Board) may dismiss the appeal. 37 C.F.R. §2.142(b)(1); see In re Live Earth Prods. Inc., Ser. No. 75158878, 1998 TTAB LEXIS 437, at *4 (1998). If the appeal is dismissed, the applicant may file a motion with the Board to set aside the dismissal and accept a late-filed brief. Applicant may also file a motion to accept a late-filed brief when the time for filing the brief has expired but the Board has not yet issued an order dismissing the appeal. If the Board denies the motion, the applicant may file a Petition to Director under 37 C.F.R. §2.146 in the trademark electronic filing system, requesting that the Director review the Board’s action. The Director will reverse the Board’s action only if the Board clearly erred or abused its discretion. An applicant should not file a Petition to Director until it has first filed a request/motion to accept the late-filed brief with the Board, and the Board has denied the request/motion. TBMP §1203.02(a). The applicant may not file a petition to revive under 37 C.F.R. §2.66 when an appeal is dismissed for failure to file a brief. TMEP §1714.01(f)(ii)(E).

The date of appeal for purposes of calculating the due date of the appeal brief is the date on which the notice of appeal and filing fee is received by the USPTO. If the applicant has also filed a request for reconsideration under 37 C.F.R. §2.63(b)(3), the Board will acknowledge receipt of the appeal and request, suspend further proceedings (including applicant’s time for filing its appeal brief), and remand the application to the examining attorney. See TBMP §1203.02(a) and §1204 for further information. The filing of a request for reconsideration within the time provided for responding to the final Office action (see TMEP §711) will automatically result in a suspension of the appeal, and an applicant need not file either its appeal brief or a request for an extension of time to file the brief. See TBMP §1204.

The applicant’s brief may not exceed 25 double-spaced pages in length, and should meet the requirements of 37 C.F.R. §2.126. 37 C.F.R. §2.142(b)(2); TBMP §1203.01; see In re Dimarzio, Inc., Ser. No. 87213400, 2021 TTAB LEXIS 457, at *6-7 (2021) (Board refused to consider applicant’s 16-page single-spaced brief which "would undoubtedly exceed 25 pages if [a]pplicant used double-spaced text, as required"); In re Thomas, Ser. No. 78334625, 2006 TTAB LEXIS 135 (2006) (Board refused to consider applicant’s 29-page brief).

If an applicant, in its appeal brief, does not assert an argument made during prosecution, such argument may be deemed waived by the Board. See In re Katch, LLC, Ser. No. 86301765, 2019 TTAB LEXIS 154, at *3-4 (2019); TBMP §1203.02(g). Similarly, if an applicant's brief attempts to incorporate by reference an argument made during prosecution, such argument may be deemed to have been forfeited. In re Princeton Equity Grp. LLC, Ser. No. 97397212, 2025 TTAB LEXIS 242, at *9 (2025).

After the applicant’s brief has been filed, the Board will send a notice to the examining attorney. The examining attorney has sixty days from the date of the Board’s notice to file a responsive brief with the Board and issue a copy to the applicant. 37 C.F.R. §2.142(b)(1); see TBMP §1203.02(b).

The examining attorney’s appeal brief should be concise and contain a complete statement of reasons for the refusal(s) or requirement(s) and supporting facts. The examining attorney's appeal brief must not incorporate by reference any argument made in previous Office actions. See In re Princeton Equity Grp. LLC, Ser. No. 97397212, 2025 TTAB LEXIS 242, at *9 (2025) ("Parties whose briefs purport to incorporate by reference arguments made during prosecution will be held to have failed thereby to present whatever arguments the incorporation statement purports to cover to the Board and will be deemed to have forfeited them").

Examining attorneys should use the format shown in Appendix A as a model when preparing an appeal brief. The purpose of this format is to promote consistency and to provide content guidelines. The substance of the appeal brief is a matter of individual discretion.

The brief may not exceed 25 double-spaced pages in length. 37 C.F.R. §2.142(b)(2); TBMP §1203.01; see In re Thomas, Ser. No. 78334625, 2006 TTAB LEXIS 135 (2006) (Board refused to consider applicant’s 29-page brief). When referring to the record, the examining attorney should cite to the electronic record for the application, currently the Trademark Status and Document Retrieval (TSDR) system. The citation format should be by date, name of the paper under which the evidence was submitted, and the page number in the electronic record, for example, November 4, 2013 Office Action, TSDR p. 2. Where appropriate, reference to the TTABVUE entry and page number should also be used, for example, 1 TTABVUE 2. See TBMP §1203.01.

The record in the application should be complete prior to appeal. 37 C.F.R. §2.142(d); In re Jimenez, Ser. No. 97551823, 2025 TTAB LEXIS 441, at *5 (2025); In re Weiss, Ser. No. 88621608, 2024 TTAB LEXIS 277, at *4 (2024); TBMP §1207.01; TMEP §710.01(c); see In re ADCO Indus.-Techs., L.P., Ser. No. 87545258, 2020 TTAB LEXIS 7, at *4-5 (2020). Examining attorneys should not resubmit with the brief any evidence that is already in the application record. In re Virtual Indep. Paralegals, LLC, Ser. No. 86947786, 2019 TTAB LEXIS 74, at *2-3 (2019) ("multiple submissions of the same evidence can cause confusion in reviewing the record and unnecessary delay in issuing a final decision"). Any exhibits attached to a brief that were not made of record during examination are untimely, and generally will not be considered. See In re tapio GmbH, Ser. No. 87941532, 2020 TTAB LEXIS 483, at *7-10 (2020); In re Medline Indus., Inc., Ser. No. 87680078, 2020 TTAB LEXIS 16, at *8-9 (2020) (citing In re Inn at St. John’s, LLC, Ser. No. 87075988, 2018 TTAB LEXIS 170, at *4 (2018), aff’d per curiam, 777 F. Appx 516 (Fed. Cir. 2019)); TBMP §§1203.02(e), 1207.01 n.1. However, if the applicant does submit such evidence, an examining attorney should specifically object to such evidence if the examining attorney does not want it to be considered. If examining attorneys do not object to untimely evidence, and discuss it in their brief or elsewhere in the record, the Board may treat it as of record. TBMP §1207.03; TMEP §710.01(c); see In re City of Hous., Ser. No. 77660948, 2012 TTAB LEXIS 1, at *5 (2012) (citing In re Broyhill Furniture Indus., Inc., Ser. No. 75473959, 2001 TTAB LEXIS 612, at *6 n.3 (2001)), aff’d, 731 F.3d 1326 (Fed. Cir. 2013).

If, during the preparation of the appeal brief, the examining attorney determines that jurisdiction should be restored for further examination (e.g., to make a new refusal, to correct informalities, to suspend, or good cause exists to introduce additional evidence), the examining attorney should submit a request for remand instead of an appeal brief. See TMEP §1504.05. If the Board grants the examining attorney’s request, the Board will stay further proceedings in connection with the appeal. If the Board denies the request, it will reset the time for submission of the examining attorney’s appeal brief.

The applicant may file a brief in reply to the examining attorney’s appeal brief. Reply briefs must be filed within twenty days of the date of issuance of the examining attorney’s brief. 37 C.F.R. §2.142(b)(1). The examining attorney may not file a written response to the reply brief. However, in the oral argument (if the applicant requests an oral argument), the examining attorney should respond to any significant issues raised in the applicant’s reply brief.