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).