Hello everyone, and welcome to
today's presentation
of "Mandatory trademark
identity verification."
We're going to be talking
about this topic
for a lot over the next 90 minutes.
I'm Jason Lott, the attorney
advisor for Trademarks
Customer Outreach at the USPTO.
And the great thing is that
we are going to be joined today
by two, actually, three
experts in this field.
So the information
you're going to be learning
today is going to be incredibly helpful
in making sure you understand
why we have mandatory
ID verification and sort of
how to go about it.
So before we get started
today, there are a couple
of housekeeping tips
that we do need to keep in mind.
I know a lot of you
are going to be wondering,
"Is today's session being recorded?"
And the answer is, "Yes.
Yes, it is."
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is, "Are the slides
going to be available?"
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available today.
Just take a look in the Q&A section.
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there with a link.
If you want to turn on captioning,
just click on the link there
and you should be good to go.
That Q&A box is also
where are you going
to communicate with us today.
So all you have to do,
if you have a question for us,
is pop your question into the Q&A box.
We have several other experts
who are on the line today
who are going to be
working the Q&A box.
If you,
this is not a situation
where you post a question
and it's automatically
publicly available
for everybody to see.
Actually, it's going
to go into a queue.
And so our folks
are going to be taking a look
at those questions as they come in.
If it's something quick and easy
that they can answer
then you might get a
response right away.
But if it's something
that we think everybody would benefit
from hearing the answer,
then that's going to get posted there
into the publicly viewable
section of the box.
And then Amy and Matt and also Bob
are going to be answering
your questions later
on after the presentation.
So if you have questions,
by all means pop them into the box.
But you also might want to wait
a little bit as well,
because your question might be answered
by the things that you're going to hear
right now as we move
into the presentation.
So as I mentioned, today's presentation
is about mandatory
trademark ID verification,
or identity verification.
And you're going to be hearing
from two experts in this field.
One is Amy Cotton
and the other is Matt Schwab.
And we are going to be discussing the,
you know, more about the program
and why and how we're using user roles
to help regulate
unauthorized trademark submissions
and how you can help determine
the right role for
your specific situation.
So let's do some quick bios
and then we'll jump
right into the presentation.
So Amy Cotton
is the Deputy Commissioner
for Trademark Examination Policy.
She's held a lot of different
positions over the years,
including leading the U.S.
delegation to the World
Intellectual Property
Organization on trademark matters.
And in her role as
the Deputy Commissioner,
she oversees eight
different offices at the USPTO,
including the one
that is relevant for today,
the Office of Trademark Policy.
We also have Matt Schwab.
He works in the Office
of the Deputy Commissioner
for Trademark Administration
as a staff attorney
with Electronic Filing
and Public Web Services.
He focuses on policy
and security issues
related to trademark filing,
and he previously worked as a trademark
examining attorney and as a mentor.
So, Matt, I'm going
to turn it over to you
for you to start just your
presentation and away we go.
-All right.
Thanks, Jason, for those introductions
and for leading in with some energy.
I will do my best
not to suck it all
out of the room as we proceed.
There are going to be four main topics
that we cover today,
and one of them is
going to be pretty fast,
and I'll hit that first.
It's the mandatory date
announcement that we made recently.
You're going to need to verify your
USPTO.gov account
by August 6th
in order to continue filing.
And so we'll talk a little bit
more about what that means.
We're also going
to talk about some changes
to our online verification options.
We have a new option for filing for
verifying your identity.
And we also have
some new privacy options
that we've rolled out too.
And then once I'm done with those,
Amy is going to spend
the bulk of the program
discussing the register
protection program.
Why are we implementing login ID
verification?
Why are we moving to a phase three
with enhanced security controls?
And finally,
an in-depth talk on the user roles.
We've got for user roles:
owner, attorney, Canadian
agent or attorney,
and attorney support staff.
And we're going to
explain much more about
when you should choose
one or the other,
if possibly more
than one would apply to you.
And what the ethical
obligations are for
each of these roles.
So in the first slide,
we're just going to talk
about the mandatory date briefly.
August 6th, 2022 is the mandatory date.
That's a Saturday.
And on this day,
you will need to verify
your USPTO.gov account
in order to continue filing
trademark submissions.
If you just have filings
that are outstanding,
but you don't need to access
TEAS or TEASi to file,
you don't need to go in and verify,
you know, just as a status issue.
But if you need to make a filing,
you will need to verify your identity.
Again, we have two options for owners
and attorneys to verify
their identities.
We have an electronic online
version and a paper version.
And support staff can be sponsored.
But please don't
wait until the last minute
to do this just in
case there's any issue.
Most of them should be short,
15 to 20 minutes or less.
But if you run into any issues,
it's going to be difficult
at the deadline.
If you are at deadline
and you have trouble verifying,
we're going to be discussing it in
further length on our website.
And our support materials
our, our policy for handling that,
but it's essentially
going to be a version
of our current outage procedure
for when TEAS would be unavailable.
There are a few changes
to the online verification process.
And the biggest one is one
that we rolled out on June 30th,
along with a lot of
these other changes.
This is a new option,
a new way to verify.
So originally
we had an option
and we still offer this option
called the "self-service option."
You'd go in, you would provide a selfie,
and you would hold up
your driver's license.
It would take a picture of you,
compare it to your driver's license,
and then it would use AI to validate
the similarity between those,
verify your identity,
and the automated process
would take about,
you know, 5-10 minutes to complete.
If for whatever reason,
you couldn't be completed,
most often due to a credit freeze
that we'll talk about later,
you would be routed to a video chat
agent to complete that.
So you would move to the queue,
wait for a video chat agent,
and then perhaps provide
additional documentation,
but finish your verification
in that session.
We're offering a new option now,
and that is for people
who don't want to go through
the self-service route.
This is a "direct-to-video
chat agent" option
and simply you can just choose
on the main page
that you want to go directly
to a video chat agent.
You won't need to provide a selfie,
but you may need to provide
some additional documentation
that we'll discuss
on the following slides.
So this slide is a good comparison
of the differences between these two
and some of the considerations
that went into
to offering these options.
So on the left, we'll start
with the self-service
and then we'll go back and forth
between the two to compare
the differences.
Self-service is going to require
a driver's license,
passport, or passport card.
More than 95% of people
who are verifying through ID.me
are using at least one of these
for their verification.
So it does have a pretty good reach.
The driver's license
can also be a state ID.
It does not need to be
a driver's license.
It could be a state ID instead.
The direct to video chat agent.
They'll need at least
two identity documents,
but they can pull
from a much wider list.
This wider list is available
on our USPTO ID.me
help site, also on their help site.
It includes things
like utility bills,
alternate forms of verification,
alternate forms of identity.
It's much wider,
but you will need to provide more of it
if you go into this option.
The self-service uses AI
for that first step.
That's why it's available
24 hours, very quickly,
and can get you in and out the door
in 5 to 10 minutes.
The AI
checks your, your
biometric data
against your driver's license
and makes a decision
about whether you match based on that.
The direct video chat
agent uses human eyes
to make this determination.
So there's no facial recognition.
There's just a live video chat.
Now the data is collected
for the self-service option.
The data is deleted after 24 hours.
So the selfie that you provide:
deleted. The biometric data
that's derived from it is also deleted.
For people who use this option,
like I did prior to March 30th,
you'll need to go in there manually
or I'm sorry, prior to June 30th,
you'll need to go in there
manually and delete this.
And we'll give instructions
on a following slide
about the link to go to.
It really is about a 10 second process.
You just click on the link, log
in, tell it you want to
delete the data, and move on.
I think there's.
Can we go back one slide?
There's just one. One
or two more points to to compare here.
The credit profile check
ius required as part of
the self-service option. So if you're
not sure if your credit
profile is complete
or if it exists or if you know
that you've placed a freeze on it,
you may want to choose the direct
to video chat agent
because they will try to check this
and it's not doing a credit
worthiness check.
It's not doing a financial inquiry.
It is just looking
at the things on your profile,
like your name, address, phone number
to try to match them with the records
that are from your ID
to see if there is in fact a match.
If the automated system can't use this,
the direct to video chat
agent will have a wider
range of options that they can do.
When you go in to video chat with them,
they will record that chat
just to make sure
that there are no
security issues happening,
nobody doing anything under duress
or being confused
or misled into doing anything.
And that is deleted after 30 days too.
Again self-service,
about 5 to 10 minutes.
Direct to video chat that may,
the session itself
will take about 5 to 10 minutes
when you're in it.
But there may be a wait for an agent.
That'll be displayed,
as you can see on the right side
of the screen in this video chat
agent option here.
It'll tell you about
how long the wait time is. 30 minutes
is generally
a little bit on the higher side.
That's what you get
when you're coming in
after work, when other people
are coming in to
verify their identities.
If you do it in the morning, it's
typically significantly less.
So.
We also wanted to enhance
some of the privacy settings
because we heard customer
concerns about privacy.
We take it very seriously
and we don't want
to have any information
that's kept unnecessarily, that's
that that people feel
uncomfortable providing.
We really are trying to collect
the very minimum that we can
to guarantee that
the person who's using an account
is the person who's named in it.
So the self-service
has had some changes made to it.
We only use, there
have been some articles in the news
about facial recognition.
We use the kind that
compares your selfie to your photo ID.
We're not comparing it
to other people's photos.
We've we've not used this service
from from ID.me since
late February, and it was only used
in a few cases before that.
So we've we've been able
to survey that and determine that, that
there were no issues with that.
But we just want to
make sure everyone knows
we're
we're not comparing these images to
everybody else's photos.
It's only comparing it
to your driver's license.
The selfie in the biometric
data, again, is now
automatically deleted after 24 hours.
People who verify their identities
prior will need to go in
and delete it manually.
And this is the length
that you can go to:
account.id.me/signin/privacy.
You can just go right in there
and there's a big button that says,
"Delete my selfie." And it will
clear all that out.
The direct to video chat agent,
as we said before,
will delete those video recordings
automatically after 30 days.
And again, it does not use
facial recognition.
In this case because you're
talking to the video
chat agent directly
and they are using human recognition.
And again, both options:
the profile is checked,
but not the credit history.
These are not financial matters
that are queried.
Just think of it as a an in-depth
phone book directory listing.
That's the information that it's
checking against.
So we've talked a lot about changes
to privacy, changes
to the online option.
We just want to remind you
that you do have
multiple options for verifying here,
including the paper process.
That's been available
since January 8th,
the same date that online
verification became an option.
And attorneys and owners
can use this to mail
in a notarized paper form
that they can then send to us.
And generally within a week.
We've really gotten it
down to three or four days,
as long as there are no issues,
getting these verified.
So this is an option,
but it's not the best
one for a last minute option,
and it does require
an in-person notary.
Again, we've got these two options
for online verification: self-service
and our new video chat option.
We've got the attorney
support staff process,
and this is what support staff
have to use.
Paralegals and other support staff
who are working under
the supervision of an attorney
will be sponsored by that attorney
once the attorney has verified,
their identity
using that sponsorship tool
that we have links to on our page.
So the support staff
will not go through ID.me.
They will not submit a paper form.
Instead, they will be sponsored
by their sponsoring attorney
who will verify their, that identity
at the time of sponsorship.
And finally, for all of our
patent practitioners
and other patent filers,
we have their accounts
that are the same USPTO.gov accounts
as the trademark users have.
In most cases, we are able to determine
what their role is
and if we can automatically
move it over or not.
If you have a role
that we can't automatically move over,
you may need to go back in
to our "Verify identity" web page,
select your trademark filing role,
and then you'll be allowed to proceed
as long as you're logged in with that
previously verified account.
So that's the the
extra step
that some of our patent filers
may need to take.
But if they have gone through patent
verification, even
going back to the PKI
certificate days,
that's carrying through until now.
If you've been verified with us,
you don't need to verify again
just with trademarks
as long as you verified
previously with patents.
So these these ways
of verification,
they vary according
to the roles that you have.
And we're going to
spend a lot more time
talking about these roles
and why we need roles
and why we need verification
and the rest of these things.
And so for that,
I'd like to turn it over
to Deputy Commissioner Amy Cotton.
-Thank you, Matt.
So he told you the how.
I'm going to tell you the why.
So over the past few years,
well, and probably even
a little bit longer than few, right?
USPTO has seen a steady
growth of abuses
of the filing system,
attempts to circumvent
our rules of practice,
and outright fraud.
So these scams are growing
in volume, variety.
They're constantly, constantly
evolving, just like
counterfeiting, right?
There are four main types.
Scam type number one:
where the scammers mislead
customers to pay inflated fees
for fake or unnecessary services.
These are those misleading invoices.
Number two: scammers pose as the USPTO.
And for this, actually,
we were trying to register
our own logos as trademarks
so we can use those to
take down these folks
that are posing as us.
Scam type number three:
tthese are when scammers
are hijacking applications
and registrations
in order to extort money
or get into an e-commerce
platform brand registry.
And scam type number four:
where scammers are hijacking
or renting attorney credentials
to circumvent the 2019 U.S.
Council rule.
So to respond to these
scams, we've developed four, five
broad strategies.
Number one.
We've had to rethink and reorganize
the registration system.
Our examining attorneys
only see one application at a time,
and that means that they're not seeing
the telltale markers
of a bad faith filing firm
that's the invisible hand behind
thousands of invalidly
filed applications.
We decided to pull,
as best we could,
to pull these suspicious cases
out of examination
for review and handling by
non-examination staff.
And that leads to strategy number two.
To pull these cases out of examination,
we had to create a sanctions program,
a sanctioned process.
The Special Task Force
for Improper Activities
now review suspicious behavior
that violates our filing rules.
And it looks for evidence of intent
to circumvent our rules.
And that review may result
in administrative sanctions orders.
It could result in a referral
for attorney disciplinary or
referral to law enforcement
if it's got a criminal element there.
And solution number three.
Communication's always important
to tell our customers
how to prevent scams,
how to respond to scams,
how to watch out for scams.
Solution number four.
Access controls for filing
electronic forms.
We're putting up a fence
around the filing system
so the bad actors
can't continue to inject
these fraudulent
filings into our system.
Solution number five.
Post-registration audit and
non-use cancelation proceedings.
So this is to address that fake
and fraudulent claims of use
and the specimens of use.
We established two mechanisms
to test the veracity
of applicants' and registrants'
claims of use.
That's the audit and the TMA non-use
cancelation proceedings.
Now today
I just really want to
focus on number four.
That's the access controls.
To building the fence
around the filing system.
So three phases to our
our access controls.
Phase one requires,
you remember this, customer accounts
that allow us to track
those fraudulent filings back
to the specific account
from which it came.
Phase two allows us
to hold folks accountable
for their filings.
If the filings are
fraudulent, the account
from which they're
filed will be blocked
and that bad actor
won't be able to simply
create a new one
under a different name.
Phase three allows
us to control submission rights
to applications and registrations.
Now we're only in the beginning
phases of designing phase three,
so that rollout really
will not be sometime in
probably late 2023, 2024.
We have some work to do
and we got delayed on phase two,
but we're making making headway now.
So we have something,
I don't know, 200,000
USPTO.gov accounts.
Only about 70,000
are ID-verified so far.
And we can track the filing behavior
on all those accounts.
But for those accounts
that are not ID-verified,
we actually don't know
who is filing from that account.
We don't know how many people
are filing from that account.
And we don't know
whether one person controls
multiple accounts
under different aliases.
So if we shut down
one of those fraudulent accounts,
there's nothing stopping the bad actor
from creating a new one.
But we now have a game changer.
It's coming down the pike,
August 6th, mandatory ID verification.
So as Matt said,
all USPTO.gov
accounts must be ID, ID-
verified in order
to continue to access TEAS and TEASi,
as of August 6th.
Now, after August 6th,
then that means if
we discover an account
is responsible for fraudulent filings
or other bad behavior,
we can take it down.
And it should stay down
because the bad actor, bad actor
can't create another
account with that ID.
Now, I'm sure all you guys, focusing,
focusing on anti-counterfeiting efforts
just laugh at that.
And we know, you know,
we're not going to solve the problem.
This is not a silver bullet
all at once, but
certainly it can help us
in our fight to combat
fraudulent filings.
But I'm really here to talk about
another feature of that, that phase two
that can help us
cut down on unauthorized,
fraudulent submissions.
And that's the user rule feature.
So when you verify
your USPTO.gov account
and I hope all of you have done that,
you have to choose a user role.
We're using these user roles
and the enforcement of these user roles
to regulate the conduct of those
appearing before the USPTO.
Phase three.
Now, when I say we're
regulating the conduct,
here's an example of the conduct
that we're seeing.
We're seeing unauthorized changes
of correspondence addresses.
They appear to be hijacking attempts.
They're trying to extort money
from the true owner
or they're using
that hijacked application
to enroll in a brand registry.
Now, phase three, role-based
access controls, will stop that or,
you know, help to stop it, hopefully.
These roles
that account holders are claiming
now are the ones that the USPTO
will use to establish in phase three
what submission rights you have.
Now, don't worry,
you'll be able to change your role
if you chose the wrong one originally,
if you've already ID-verified.
Now phase three, we haven't
really fully developed
phase three, but our current thinking
is that owner accounts
would have submission rights
related to their own applications
or registrations.
And generally an attorney account
would have submission rights
for only those applications
or registrations
that are consistent
with our recognition rules or,
you know, who the attorney
can appear
before the office and represent.
Attorney support
staff would only have
access to those files
where their sponsoring
attorney has access.
So that's phase three.
But we're we're still in phase two.
So let's focus on that now.
There are four
available user roles
that can correspond to
those that are authorized
to make submissions
in trademark matters.
And that's owners, attorneys,
Canadian agents or
attorneys, and Canadians,
I'm sorry, attorney support staff.
Now, owners and attorneys
must verify their identities
through the processes
that Matt describes, through,
you'll you'll find them on our ID
verification web page.
Attorney support staff,
again, I'll reiterate,
do not verify their identities
through the paper or online process.
Instead, the attorney who is sponsoring
the support staff must verify
the identity of the support staff,
and I'll go into that
in a little bit more detail.
All right.
So I'm going to go back up to to
30,000 feet for a minute.
I just told you there's
four user roles,
but really, in reality,
there's really only
two categories of people
that should be making submissions
to the USPTO under our rules.
And that's owners
and attorneys representing owners.
Limiting user roles
to these two categories
will help us to ensure
that whoever is filing
a submission is acting as the owner or
on behalf of the owner.
Now, historically, our
trademark registration
was based on trust.
In the past,
we used to trust that
the information provided
to us was accurate.
But we really don't live
in that world anymore.
And based on our experiences
reviewing fraudulent submissions
in the past few years,
the USPTO does not have assurances
that, in particular, non-attorney
entities, that is,
those engaging in the
unauthorized practice
of law or unauthorized
representation of others
before the USPTO,
that those folks are not acting in the
in, on behalf of the owner
and they're not acting
with the owner's
knowledge of the information
contained in the submission.
And we want to address that.
So user roles: owner.
Let's start with owner.
A trademark owner,
of course, can be an individual.
It can be a juristic entity
like a corporation
or partnership or LLC.
And therefore the
trademark-verified USPTO.gov
account owner role encompasses
a person who's an individual
and the owner of the mark,
a person who can legally bind the owner
(like a corporate officer
or a partner in a partnership)
and a person who is directly employed
by a juristic entity
owner, the trademark owner.
Now it doesn't say on the slide, but
the trademark-verified account
agreement states
that the direct employee
must not have a financial interest
in the outcome of the
registration process.
So I have an asterisk
here on the slide, you'll see,
because there's some nuance here.
The word "direct"
means that an outside non-attorney
trademark preparation or filing firm
cannot be considered
an employee for the purposes
of claiming the owner role.
Similarly, the
the employee should not have
a financial interest
in the outcome of the registration
because again,
we don't want those
outside contractors,
those outside non-attorney preparation
firms to claim the owner role.
We need to be able to trust
that the submissions from
the owner can be deemed
to be an act of the owner
because they're authorized
by the owner.
They're made at the owner's request.
And they're made with
specific knowledge of the information
contained in the submission.
Now,
what we don't want to see to get around
this is, we don't want to see owners
sharing their login credentials
with their employees.
That would be an account
agreement violation.
And I'm going to repeat
this for clarity.
There cannot be multiple users
for one account. Nope.
So a corporate officer
cannot establish an account
and then share that
with several employees.
Each account is tied to an individual
and that individual's identity
must be verified
or attested to by
the sponsoring attorney
so that the USPTO can monitor
filing activities
and sanction the appropriate party
if there is misuse of the account.
Moving on to the
second category,
I think it's pretty self-explanatory,
but let's talk about it a little bit.
The U.S.-licensed
attorney role is for a U.S.-
licensed attorney,
but they need to be in good standing
of the bar,
the highest, of the highest court
of that state or territory.
A trademark consultant or paralegal
who is not an attorney
nor affiliated with
or supervised by an attorney,
cannot claim the attorney role.
If that paralegal is directly
supervised by an attorney,
that attorney may sponsor the paralegal
in a support staff account.
A third category: Canadians.
This might surprise a lot of folks.
Why Canada?
Well, we actually have
a really old agreement
with Canada to recognize
certain Canadian practitioners
and allow them to represent
Canadian applicants before the office.
In return,
Canada reciprocally
recognizes some U.S.
attorneys to represent applicants
before the Canadian office.
So the Canadian agents
and attorneys in this user role
are limited in their ability
to make submissions
to the USPTO
by what is reciprocally
recognized for U.S.
attorneys to do in Canada.
So there's definitely some rules
around this process,
overseen by the Office
of Enrollment and Discipline.
The only submission
the Canadian attorney
or agent may validate
and submit through TEAS or TEASi
is a new trademark application.
A U.S.-licensed
attorney must validate or file
all other submissions to the USPTO
for the Canadian associate attorney.
This is in TMEP 602.03(a)
for those Canadians
in our audience today.
Attorney support staff: the fourth role.
It's also a limited role
because attorney support staff
are not authorized to make submissions
to the USPTO under our rules
unless they are directly
supervised by an attorney.
So a U.S.-licensed
attorney or
Canadian agent or attorney
may sponsor their support staff
in their accounts.
Now these requirements, as Matt
said, are laid out
in the trademark sponsorship tool.
Again, the support
staffs are not verified
through online or paper process.
Attorneys must verify
the support staff.
So the sponsorship tool
guide says for, quote, "for U.S.-
based support staff, individual
use of the identity
proofing process
associated with USCIS form I-9
would be considered to be consistent
with the resolution
of identity required
by the digital identity guidelines."
So for those of you who have,
you know, started employment
with an organization, you know
there is an employment
check with the I-9 form,
usually. That should be,
that's the typical employment check
and that would suffice for purposes
of this identity verification process,
the new employee onboarding process.
Okay.
So again, we're going
to talk a little bit more
about the attorney sponsorship
obligations, because I know
attorneys like to know the rules.
Under USPTO rules,
attorneys are, of course,
allowed to have support staff
to assist in practicing
before the USPTO.
This comes with a caveat, though.
The support staff, as I
said, must be directly
supervised by the attorney.
To ensure that direct supervision,
the rules say the
attorney is responsible
for any submission
filed by the attorney support staff.
We are already aware
that there are some U.S.-
licensed attorneys
who are sponsoring support staff
that are not directly employed by
or directly supervised by the attorney.
And this is typically foreign
filing firm personnel.
This is not allowed
under the account agreement.
Once we find submissions
emanating from these accounts
that they're fraudulent,
that sponsored support
staff account will be terminated
and the attorney account
will likely be terminated as well.
So if you are,
if you are renting out
support staff accounts
to foreign attorneys
and fraudulent filings
start coming from those support staff
accounts, you're
going to lose your account
as well as the supervising attorney
because you're not supervising
nor following the agreement.
We will likely refer you to the USPTO's
Office of Enrollment
and Discipline, OED,
for attorney misconduct.
So be careful.
Furthermore, the filings
featuring rule violations
will be reviewed
under our administrative
sanctions program
for possible sanctions
that may include termination
of the tainted applications.
These applications are tainted because
they feature rule violations.
Okay.
I'm going to probably get into
that heavy-handed mode again,
but let's back up a little bit.
Okay.
You can have one account.
And for most filers,
there will be only one
role that applies.
So as you're trying to figure out
what role applies to you,
let's go through some scenarios.
If you're the owner of the mark,
you control an entity
that owns the mark,
or you are a direct
employee of the entity
that owns the mark,
you choose the owner role.
If you are an owner
and you're represented by counsel,
this is internal counsel
or external counsel,
you don't need an account at all.
The corporate officer can sign
trademark documents without an account
and just return them to the counsel
who can submit them.
So the corporate counsel
has their own account,
but the corporate officer doesn't
necessarily need an account
if they're represented by counsel.
If you are a small
juristic entity owner,
you may not allow
your external counsel,
your contractor, law firm
working on your matters
to create an owner account.
That outside law firm
that, those attorneys should verify
their own USPTO.gov
accounts in the attorney role.
Now, if you're both an owner
and an attorney that engages
in the practice of law
as part of your ordinary
job activities,
you should select the attorney role.
This might be a general counsel
who's an officer, but also counsel.
But you should go
with the attorney role.
The attorney role
allows you to touch more files
where you are the,
you have recognition rights.
The attorney role.
If you're a U.S.-
licensed attorney who practices
trademark law for external clients
or internally as in-house,
you choose the attorney role.
If you're a Canadian attorney or agent
and you have been
reciprocally recognized by the
USPTO's Office of
Enrollment and Discipline,
you choose the Canadian agent
or attorney role.
If you're not reciprocally recognized,
you may not have a role.
Either role (the attorney
or the Canadian attorney
or agent role) will let you sponsor
and manage your attorney
support staff's accounts.
Attorney support staff.
An attorney may not sponsor
other attorneys who work under
their supervision as support staff.
So if you're a law firm partner
and you have associate attorneys
who are, you are directly supervising,
they're not support staff.
They're an attorney.
They need to get their own ID-
verified account.
If the support staff.
If this. Let's see.
Each attorney
must verify their own identity
before they can sponsor
support staff.
And if that support staff
provide support work
under the direct supervision
of one or more attorneys,
each of those supervising attorneys
have to sponsor that person
as their support staff
so that that support staff
then can touch each of those attorneys',
the different attorneys' files.
There'll be more information about
this on our web page.
Okay.
Who's not in these user roles?
Non-attorney preparation
and filing entities are not included
in these user roles.
Under our rules,
they are not authorized
to prepare trademark filings.
They are not authorized
to do clearance searches
with registrability opinions.
And they cannot give
legal advice at all.
They cannot represent owners, owners
before the USPTO,
and they cannot provide legal advice
and prepare submissions
for the owner to submit.
The only thing they can do under
our rule,
rules is to transmit the filing
if they can meet
the certifications under 37 CFR 11.18.
We'll talk about that
a little bit more.
But so if we established
a user role for that one
function of transmittal
because that's all they can do,
we would certainly see
a lot of users continue
to engage in the
unauthorized practice of law
because while the transmittal
of the submissions
may not constitute the practice of law,
it's nearly impossible for the USPTO
to know where the practice of law ends
and that transmittal begins.
Cutting down on those
who can have a verified account
will assist us with deterring
and discouraging the
unauthorized practice of law.
Now that third category, Canadian
role, is likewise limited
to a small number of practitioners,
reciprocally recognized and regulated
by both the Canadian office and OED.
If you are a U.S.-
licensed attorney
and you have many foreign
domiciled clients who use
foreign trademark firms
for consultation, you may not sponsor
a foreign trademark firm associate's
USPTO.gov account.
You may not sponsor
a foreign or domestic company, group,
client, agent, attorney,
or other practitioner.
You may only sponsor support staff
that are employed by your firm
or company and work directly for you
under your direct supervision.
Now, this is an uncomfortable
conversation about the
unauthorized practice of law.
And I'm not the expert.
That's the Office
of Enrollment and Discipline.
But we have to go there
a little bit together today.
Now, while the practice
of law is regulated
by state bar associations,
in fact as a federal agency,
the USPTO has the authority
to regulate the conduct of proceedings
before the office,
to regulate the conduct
of those who appear before the office
in proceedings,
and to manage and direct
all aspects of the
trademark operations.
USPTO rules govern conduct
of both practitioners
and non-practitioners
and they provide sanctions
for noncompliance with our rules.
Practice before the office
in trademark matters
is is described in our rules
and any person engaging
in unauthorized practice of law
in trademark matters before
the office is subject to investigation,
possible administrative sanctions,
including sanctions
that may affect the validity
of submissions made by that person.
So what does practice include?
You can see it up here on the screen.
This is in the rule.
Practice before the office includes any
law-related service that comprehends
any matter connected
with the presentation to the office
relating to a client's rights,
privileges, duties, or responsibilities
for the registration of a trademark.
And there are examples
in the rules in those four
squares below.
If you have questions about
specific fact patterns
and whether they represent
the unauthorized practice of law,
ask OED.
They are the experts.
If you call them,
OED has an attorney of the day on duty.
They'll take anonymous calls
with no records kept.
You can
you can use the phone.
There's a phone number
on their website:
571-272-4097.
Or you can email them
at OED@uspto.gov.
They will discuss.
They're very friendly, by the way.
They will discuss
the fact patterns with you
and they'll point you
to the specific rules at issue
to provide you with guidance.
But they won't issue
those formal opinions
that you get from a state bar, though.
But they will certainly engage with you
and talk about the rules.
So non-attorney entities do
exist but they are very limited
in what they can do
without running afoul of our rules.
Now, over the years,
we all know, due to,
I guess, a lack of attention
and enforcement,
non-attorney entities have expanded
into the practice of law
as our customers seek low cost
trademark filing options.
This is a mistake.
Non-attorney entities
can offer trademark information,
but not advice.
They can act as a mere scrivener,
a scribe,
when assisting in the preparation
of trademark documents,
but, so they can take down
what a principal officer tells them,
but they cannot prepare the application
because that typically
requires legal advice to try to,
as you fill out the
application on your own.
But if some some principal officer
is telling you what to do,
then that is not considered
the practice of law.
But, of course, fine line.
These non-attorney
entities can conduct trademark searches,
but they cannot provide
registrability opinions.
So they're not doing
a clearance search.
They're just doing a search.
Our user roles do not accommodate,
and maybe this comes
as a surprise to some of you.
They do not accommodate, accommodate
these types of entities
because they do not have
submission rights
and they likely cannot certify
the submission under 37 CFR 11.18(b).
And I encourage you
to pull that up on your screen
and see what it says. Again:
37 CFR 11.18(b).
Any resulting application
or registration, registration
featuring the unauthorized
practice of law along with other
rule violations,
could be subject
to sanctions and terminations.
Termination of the applications.
Now I want to go off
on a slight tangent here.
Maybe you think I've gone
on a lot of tangents,
but here's one I'm
definitely calling out.
I want to highlight a point
about corporate paralegals
in this context of this slide
explaining how non-attorneys
cannot practice law.
If a small juristic
trademark entity owner
such as a small corporation, LLC,
if they don't have an attorney on staff
and they don't use
an outside law firm
for their trademark prosecution work,
the entity may decide to rely on
an internal paralegal or brand manager
to handle the trademark work.
That non-attorney entity,
that non-attorney employee, sorry,
the paralegal, the brand manager,
cannot practice trademark law.
They're not supervised by an attorney.
They cannot practice trademark law
for that small corporation.
Now, we talked about what
the practice of law entails
and what it does not entail,
and that line is super
difficult to find.
So for that reason, your best
bet in these situations
is simply get an attorney
and to avoid any complications
related to the unauthorized
practice of law.
But, of course, if that's not feasible,
then the non-attorney
employee of that juristic entity
can only act again as a mere scrivener,
and their work must be directed
by someone with authority
to bind the owner in trademark matters.
We will allow that employee
to have a USPTO.gov account,
and that employee
may claim that owner role.
But we cannot, the USPTO
cannot, police on a regular basis,
whether that employee is engaging
in the unauthorized practice of law.
That's for you, the owner,
to decide and evaluate and determine.
If you have questions about it,
again, call OED to talk
about the specifics of your situation.
And I keep referring it "mere scrivener,"
that's case law.
So certainly you might
want to look that up
so you can understand
the distinction,
the line between unauthorized practice
and the practice of law.
Now, as I said, customers
are relying on non-attorney
entities for legal advice,
but they do not realize that
that non-attorney entity
cannot represent them
before the USPTO
and they don't know that
that entity's behavior
could undermine the validity
of their application or
of the registration.
The USPTO has imposed sanctions
and terminated pending applications
that contain violations of USPTO rules
without regard to whether the applicant
was aware of the rule violations
perpetrated by those making submissions
on their behalf.
These trademark applicants
have been misled and defrauded
by actors filing submissions
at the USPTO purportedly
on their behalf,
but clearly against the owner's interest
and in most cases
without the owner's knowledge.
We want to discourage
reliance on these non-attorney
entities and to adhere.
We want to encourage
adherence to the Lanham Act
and USPTO rules more closely.
And we want to do that
by limiting the user roles,
access controls, to the filing system.
Now here's my slide of shame.
This is a list of U.S.
attorneys that have
entered into agreements
with OED following
an investigation
of their attorney misconduct.
These attorneys rented out
their credentials
to foreign filing firms
who then engaged
in the unauthorized practice of law
by filing submissions
prepared exclusively
by the foreign firm
and without the U.S.
attorney conferring
with the foreign clients
or reviewing the submissions.
This was all done through USPTO.gov
accounts, through
which we contract submissions.
So when we discovered this behavior,
we referred this conduct
to the Office of Enrollment and Discipline.
They investigated.
They pursued appropriate discipline.
Now, discipline
can include suspending
the attorney for practice
before the USPTO,
which happened in all of these cases,
and sending the discipline
to the attorney state bar for possible
reciprocal discipline.
So their state bar was notified
of the discipline before the USPTO
and could decide
to impose reciprocal discipline
at the state level.
So if one of these
settlement agreements
issues or litigation
concludes between the USPTO
and that attorney who was referred
over there for misconduct,
then that's when Trademarks
will review the files
where that disciplined
attorney is of record.
We will determine
whether the nature
of the rule violations
in all of those cases should result
in the termination of the applications
and whether it should result
in the blocking of the attorney's
USPTO.gov account.
So in these situations
where these attorneys
are renting out their credentials,
the sanctions can end up being
that that attorney's USPTO.gov
account is blocked forever,
which means they can't file
anything, forever,
before the USPTO in trademark matters.
So they're done, as far as trademark
registration process
is, is, is, is aware.
So it's an issue.
It's not. It's no joke. No joke.
Okay.
Now, this might make
some people want to snooze
because signature rules are tough,
but it is an important point.
Many of those attorneys
on that previous slide
authorized the foreign filing firm
to sign their name on the submissions.
So the foreign filing firm is signing
the attorney's name, the U.S.
attorney's name on the submissions.
That's not okay.
That is not okay.
Under USPTO rules,
submissions must be personally signed
and therefore signatures
are non-delegable.
Authorizing someone who is not
the signatory to sign
a trademark submission jeopardizes
the validity of the submission
and may affect the validity
of the entire application
or registration.
In other words, you may not authorize
your paralegal or
contractor or employee
to sign your name
on a trademark filing.
They can sign their own name
if they have the authority
to do so, as laid
out on the left side of the slide.
But they may not sign your name.
So that was a little bit of a lecture,
but it's something that we see a lot of
and we're not convinced that
that the folks appearing
before us legitimately,
even even good attorneys,
we're not convinced
that they all know this rule.
And with e-signature and direct signing
and all those sorts of things, it's
getting a lot easier for us
to tell who is signing these things
and if we can tell if it's not you.
Submission certifications.
Okay.
Now, in attempting to define user
rules, this was a real
policy conundrum.
We were trying to figure out, okay,
what are the different
categories of people
who contribute to the filing
of a trademark application?
So you've got the application preparer
and that can be the clearance searching
and the legal advice
that goes into the process
of preparing an application.
Then you've got the signatory.
And then you've got the transmitter,
the person who clicks transmit
or used to be mailing it, right?
It's not that anymore.
Just because you have an account
with an approved user role
does not mean you are authorized
to take certain certain actions
like signing, preparing, or certifying.
I want to be clear on that.
Just because you have this account
does not mean you are authorized
to take actions.
It really depends
on the rest of our rules
as to what you can do.
Now, we did consider,
okay, should we limit
user roles to those
who can sign a submission?
Right?
So the signatory.
Then then we'd be really sure
of who we were dealing with,
but we just thought
that was too strict.
That was that was too
hard to administer
and it was going to really impact
people's business models.
But one thing I want to to
to highlight here, there's one action
that most people think,
I think, people think of as ministerial.
That transmittal.
But you think that's just a trans-,
you know, a ministerial act,
no big deal.
It's not just clicking
the validate button. There,
there are, you know,
things attached to that. So
I told you to pull up
37 CFR 111.8(b). Well,
it's right here, actually,
you didn't have to.
I put it up for you.
The submission or
transmittal of a document constitutes
a certification that
the statements are true,
supported by law, and not presented
for improper purpose,
and that all allegations
have evidentiary support, of course.
Now in 2019, you may remember
Trademarks started
using this authority
to sanction violators.
So when we talk about
improper behavior,
this is where it comes from.
When a paper is presented to us
for an improper purpose,
we have the ability to sanction
the person who's sending it to us.
So when a USPTO.gov account
holder makes a submission
by hitting that "validate" button
in the TEAS or TEASi
form, that account
holder is validating the submission
as being consistent
with the certifications in 37 CFR 11.18.
So if that certification isn't
true, the person
making the improper submission
can be sanctioned.
I'm starting to become a downer.
Wow, there's that.
Sorry about that.
But we want to get the bad guys.
We want to get the bad guys.
Okay, this one.
This is a list of sanctions
orders that the USPTO has issued,
a provision I just showed you, against
mostly foreign filing firms.
It's resulted in the termination
of thousands of invalidly filed
applications and termination
of their USPTO.gov accounts.
These entities here
that you see are responsible
for massive rule violations.
We're not targeting one-offs here
or those who just make simple mistakes.
We can tell. We're determining
the intent of the filer,
of the rule violators.
So if you just select
the wrong user role
when you validate your account,
don't worry.
That's not a massive rule violation.
That's a mistake.
So so certainly don't don't worry.
If you're a good guy
filing good submissions,
but you accidentally
choose the wrong role,
we're not going to
terminate your account.
But if you're a bad guy
filing bad submissions
featuring extensive rule violations
and we find out that
you chose the wrong role,
then we have two bases by which
to terminate your USPTO.gov account
and not let you back in
to file anything.
That's that fence, right?
We have that sanctions program
where we can review
the submissions and issue sanctions
based on the rule violations.
We also have the account agreement,
the terms of use,
that require you
to choose the correct user
rule for your filing situation.
So again, those user roles create
an additional basis for enforcement,
but really they also represent
a significant opportunity
for the USPTO to communicate our rules
and our expectations
for who is authorized to practice
before the office
and what practice means.
Because we frankly have been
seeing a lot of abuse
of the practice of law,
and that has resulted
in thousands of filings
that really don't represent
the interests of the owner.
They're just,
you know, an effort
to try to get at a registration
as quickly as possible,
to get on ecommerce platforms
or to to populate
the secondary market for U.S.
registrations.
There's tons of websites out there
where U.S. registrations are for sale.
Presumably, they did
not have an actual intent to use
when they filed that.
They were just trying to get it up
on a secondary market auction website.
Not a bona fide intent, right?
Right. Okay.
Um, lastly here, correcting user roles.
So let's talk about
how to change or correct your user
role. Based on what
we said here today,
you think you may have
selected the wrong one.
So you can't change your role yourself
once your verification
process is complete,
but you can contact TEAS@uspto.gov
with your change request.
Use that subject line
"Mistake in ID verification filing role."
Provide your full name
and telephone number.
Include your email address
with the USPTO.gov
account that you verified.
Specify the role
you mistakenly selected
and the role you'd like it
corrected to,
and then provide an explanation of why
you selected the incorrect role.
Our employees will review
your request and respond
within a few days to correct that.
So wrapping up here,
limiting access to electronic
trademark forms through ID
verification and user
roles to only those
whose submissions in trademark
matters can be deemed
to be an act to the owner,
that will provide
assurances to the USPTO
and to the public that these filings
are the owner's filings.
They are the owner's intents.
They're made at their
the owner's request, they're authorized.
They the owner has specific knowledge
of what's in there.
It's a waste of the USPTO's
time, the owner's time,
and our trademark customers'
time for the USPTO
to have to process applications,
thousands of applications,
from those who are not authorized
to make submissions
and who submit invalid ones
that we end up
terminating for sanctions.
It just gloms up the works
and screws up the whole
trademark ecosystem.
So we're building a fence
to keep those guys out.
It is a process.
We are not done yet,
so please be patient with us.
If we develop, we're developing
entirely new policies
to achieve our goals
of protecting the integrity
of the trademark register.
And it's for the benefit
of all of our customers
and the entire trademark ecosystem.
So with that, I am going
to stop sharing my screen.
And we are ready to
take questions if we have any.
-Yes.
-I think we have something.
-Yes. A lot of questions are coming in.
Thank you very much to all of you folks
who've been sending
in questions throughout.
We appreciate it.
And so to help us out with the Q&A
section, we're going to
also bring in Bob Lavache.
Bob, some of you might recognize him.
You've seen him before
and on other webinars.
He's the Senior Trademark
Legal Policy Advisor in
the USPTO's Office
of the Deputy Commissioner
for Trademark Examination Policy.
That's Amy's shop.
And is also the assistant editor
of the Trademark Manual
of Examining Procedure.
Started at the USPTO in 2005,
working for five years as a trademark
examining attorney
before becoming a Legal
Policy Staff Attorney.
So you're in great hands
with the three of these folks.
And just a quick note
to keep sending those questions in.
Remember, you're not going to see them
immediately pop up.
We have a great staff on the back end
curating those questions.
And also, keep in mind,
there are a lot of you on,
it looks like there's over
800 people on today.
So we're not going to be able
to get to every single question
that you send in.
So I apologize if you
if you post something
and you're frustrated that
you're not seeing it up there.
We're doing our best
to make sure we answer
as many questions as possible.
And what we're doing
is we're collecting those questions
and we're going to add some sort of
commonly asked questions
later on to the web site.
So there are a lot of you
asking very similar questions.
So we're going to make
sure we get answers
to all of those similar
sorts of questions
that we're, that have come in.
Even if we cannot answer
your very specific individual question.
So I'm going to turn it over
to the three of you,
and you can read through the
questions and take it away.
-Okay.
The first one that I'm seeing is, "Hello.
Curious as to what this means
for third-party filing services
that do not provide
attorney representing
representation services.
What exceptions will be made
for these companies?"
So the question is,
or the question presupposes,
that we should make an exception
for a third-party filing service
that does not have
an attorney on staff.
So in that scenario, if I'm following,
there is no attorney on staff.
There are trademark
consultants, paralegals,
who are providing legal advice,
preparing submissions
and filing submissions.
Well, gosh, that sounds like
the unauthorized practice of law to me.
So our rules say, "No.
And therefore
then there cannot be an exception
and there's not a, 'cause
there's not an exception in the rule
in that situation.
So I don't, I don't mean
to be, you know,
kind of annoying,
but the fact of the matter
is, that's exactly
what we're trying to stop here,
because those third party services,
maybe they are great, awesome trademark
professionals, maybe they are,
but it doesn't match our rules.
But we also have a lot of third-
party filing services
that are not great,
awesome professionals.
That are holding themselves
out to be trademark lawyers
or trademark representatives
who are, you know,
authorized to practice
before the office when they're not.
And what we have seen
in our investigations
is that a lot of these
applications are
littered with rule violations
that invalidate the application.
So it wasted everybody's
time to use one of these services
that ended up with an application
that's functionally invalid
and should not have have taken up
our examination resources
and, if they tried to be enforced,
would be unenforceable.
So that is why we're here today.
That is why the rule exists.
And we really hope
that we can cut down on,
you know, having our customers,
you know, applicants
who are relying on these low
cost filing services,
they're not getting what they paid for.
Because a lot of these low
cost filing services
don't have attorneys on staff
who are supervising,
who are not following
the rules of practice,
who are not following the rules
of professional conduct,
and cannot be held accountable for
for their behavior.
So that's why we're doing
what we're doing.
So it kind of teed up
the whole point of this
this presentation today.
So I thank you for the question.
Anybody have anything to add?
-I just wanted to say we
had some related questions
about paralegals in a
in a corporate structure
that are not supervised by an attorney.
And I think you answered that in your
presentation, that they're restricted
to the activities that can be done
under the rules of practice.
Right.
So if they're not,
as you say, supervised by an attorney,
then they're basically acting
as a mere mere scrivener or scribe.
The other question that we had
that was somewhat
related is, "What if I'm
a paralegal
working for an in-house counsel?
What should I do?
What should be my role there?"
And
Amy, you or Matt can,
can confirm or disconfirm, but
I think there that
you'd want the in-house counsel
to have an attorney user role
and then sponsor that paralegal.
-That's perfect.
That's exactly right.
-So I want to be the
bearer of good news.
-Yes. -So.
So we've got our new webinar set up
that allows us to sort
these questions by "liked."
So use that "like" button, guys.
Use the thumbs up
for what you want to see.
And the number one liked question,
straight and to the point,
it's basically, like,
you know,
"I think I did this, am I good here?"
So, yes, if you know you verified
already, you're done.
And we'll watch those attendees numbers
drop off immediately now.
I'm sorry
you waited so long, but yes,
there's no new, there's no
verification that needs to be done.
If you've already gone
through the process,
if you've gone through online with ID.me,
or you submitted the paper
verification,
you got confirmation from our staff
that it was processed,
you're good to go.
There's not an additional
verification step.
It's the same process that
we've had since January.
One of the things that
that we often hear is,
"How do I know if I'm verified?"
And so there are some ways
you can tell right now
indirectly that you're verified.
For example, you go to a TEAS form
and you get right in.
You don't get asked
to verify your account.
That means you're verified.
Later this week, we're
going to have also
available on your USPTO.gov
account on the settings page,
a little banner that tells you
if your trademark, trademark-
verified or patent-proofed or both,
and that'll indicate for you
what systems you're
authorized to enter and filing.
So we hope to have that up for you,
you know, again later this week,
so that you'll be able to, you know,
check your own account
and won't have to ask us
or won't have to guess when you go in.
And we're also going to give, again,
a lot of a lot more information
that's going to be coming forth
on our website later
this week as well on roles.
So the things that we're saying
here, you'll be able to read
at your leisure often,
as often as you like,
later on this week.
-Or next year. -Or next or next.
-And, Matt, just to drive the point home,
we did get some questions from smaller
filers who said, "Oh, basically,
I've already filed.
You know, I've kind of
got my registration.
I don't really have any immediate
pending business before the office.
I'm not verified now.
What should I do?"
What, what would you
recommend for that?
-Yeah.
And like we said before,
you know, verification
is not a status thing.
You don't just just need to be verified
just because you have
a registration or
pending application or anything.
But you will need to be verified
to take action with respect to it.
So a renewal or a response or a request
for extension of time
to file a statement of use,
all those things
you'll need to be verified
to submit those filings.
So I do suggest that
it's not to your benefit to wait.
If you find a time
that's good for you to do it
and you have a few free moments,
it's easier to take care of it now.
However, it's not required
just for ownership of these things.
Just a filing requirement
to access our system.
Let me, let me address
and I will summarize here.
I also see people,
I will summarize this
as "I'm not comfortable
using an online verification system."
We understand that.
We completely understand that.
That's why we offer a paper
verification option.
That way,
you know, the the information
that's on the form
is is all that we collect.
And the only person who sees
it is the notary who notarizes it.
So, you know, that is
that is the other option
for people who don't want
to use the online verification method
and who would otherwise need to verify
using either online or paper,
you know, use the paper form.
It's just as valid.
It accomplishes the same thing.
It just takes a little
bit longer to process.
So if you don't want
to use the online option,
it's purely a matter of convenience.
If you don't feel comfortable
doing it, please use the paper.
Please leave a little extra time.
-Okay.
It looks like the most
liked question right now is,
"I am a paralegal for three attorneys.
Do I have to be sponsored by all three?
Do they need to verify my identity
every time I prepare a filing?"
So let's start with the first part.
Yes.
If you are a paralegal
for three different attorneys, each
one of them has their own account.
They verify their identity
and then they sponsor you.
Now, why do all three of them
have to sponsor you?
Think about phase three.
What phase three is.
Phase three is where
we will limit access to applications
and registrations to those
you need to touch.
If you are a para-,
if you're an attorney
and you have a set of files,
you touch those files.
But if you're a paralegal
and you work for one attorney
who has this file,
you touch his files.
You work for another attorney
and her files, you touch her files.
And the third attorney,
you touch her files.
So that means then you need,
the paralegal needs, to be sponsored
by each one of those three attorneys
so that their list of serial numbers
shows up in your docket.
I don't know what to call that.
Your widget, whatever,
shows up in your USPTO.gov account.
Then you have the authority
to touch all of those.
So that's why each
one of them has to do it.
Because you think about future
proofing for phase three. That's why.
Oh, and the question just moved.
What was the second part
of that question?
-Verify your identity
every time you prepare a filing.
No. Identity verification
is a one time thing.
If you are sponsored,
your sponsoring attorney
only needs to sponsor you the one time.
They may revoke it.
So use the sponsorship tool.
Look at your history.
If you don't see one in there,
it could have been
an attorney revoked it,
moved to a different firm or something.
They should revoke sponsorship
once they are no longer
your supervisor.
So those things might change.
And if you are supervised by
at least one attorney,
you'll be able to access
the filing system for now.
And if you lose that sponsorship,
you will no longer be able
to access the filing system,
but you will be able
to access the sponsorship
tool, view your history
to see what happened,
if there is a mistake
or I don't want to give any
more bad news on this, but- -No bad news.
Now, remember, if if you
if you are in a law firm,
you're a paralegal in a law firm,
to get to the second part
of this question, right.
And when you joined the law firm,
the law firm verified
your identity under I-9 form, right.
Digital identity guidelines.
You're good. That's enough.
We're okay.
So you don't have to,
you know,
go through this rigamarole each time.
You as, you know, as
as being an employee
background check,
getting into that law firm,
you're that's enough.
The attorney just needs
to make sure that happened.
And then once once that's confirmed,
then you're good to go.
-So then, Amy,
what you're saying is
that so that that first
attorney sponsoring you
maybe performed that ID
verification,
everyone else at the firm knows that.
Then when you have subsequent
attorneys come in,
they don't do that part,
but they do still do
have to go to the
sponsorship tool and say,
"You know, I'm sponsoring this person."
But they don't actually have to do,
like you said, the groundwork of ID
verification because
that's already been done.
-Right. -Right.
-Okay.
"If a company has a trademark
and the person that took care of
this has left our company."
I'm sorry. That's a pain.
"How do we update
the trademark information?
And when we make a new account
for someone to take over,
how do we connect them
to our trademark and verify their ID?"
Who is this someone?
So.
Okay.
How do we answer this question?
So go ahead, Matt.
-Oh, I was gonna say,
I think this is a good opportunity
to clear up the differences
between some of the things
we've talked about.
One is who can sign.
Right.
And that's a different question
than who can access TEAS.
And those are different questions
also as who in phase
three, where remember,
this is the next
the next step that's not coming
until next year,
but who can who can come in and manage
a portfolio of trademarks
that has been secured to the owner?
Right now,
there is no need
to connect people to trademarks.
There is no need to sort of
create this portfolio.
That'll be something we'll
be able to accomplish later.
So right now, with this ID
verification requirement,
the basic idea is just
when someone comes in to file,
we want to know who they are.
And that's the that's
the main step here.
We want to know what role
they're filing in,
and that will have a bearing
on their verification options
and their ability to sponsor
and some other things as well.
But but right now,
for the things we're discussing
that are going to be
mandatory on August 6th,
you don't need to worry
about people leaving
and people coming in and
how do I manage access to trademarks.
That won't be a part
of the August six deadline.
-So then, you know,
would you recommend that
if someone did leave
the company that someone else
from the company
who's authorized
to act on behalf of the company
can then come in, get ID
verified, get their account,
and then therefore have the ability to
interact with their files.
And then at a later point
that's, you know,
phase three is when you
start to worry about
access to certain files,
right? To answer that question.
-That was a good answer.
Yes.
Yeah. -Yeah, I think that's right.
You know,
you'll still need
an account to access them.
The account will need
to be ID verified.
And you will presumably, you know,
if you were replacing someone else
who is sort of a trademark manager role,
but was not a sponsored
support staff role,
that you would choose
the same role that they had,
probably the owner,
when you come in to do that.
Those are all things that you can do,
you know, in less than 20 minutes,
if you want to create your account
and then go to ID.me
and do it that way.
Or again, it may take a few days
if you want to use the paper form.
So if there's going to be any,
if you suspect that you'll need to hop in
in short notice
and you want to use the paper
form, please leave time.
-The questions keep jumping around.
Sorry about that.
"Our law firm regularly requires clients
to sign the filings and declaration."
Yes.
"Does this mean each
client will be required
to go through the verification process?"
No.
As Matt just said,
and I think I said it before,
so there's a couple of different roles
involved with with
the application process,
one of which is the signing of it.
You do not have to have an account
to sign a submission, right?
That's the the e-sign, right?
You forward the,
the submission to your client
and your client sends it back to you
and then you submit it.
That's still the case.
So if you are, you know,
a corporate officer
and your general counsel
is filing the submissions
for you and the general counsel
doesn't want to sign them
for whatever reason.
General counsel sends it
to the corporate officer.
The corporate officer
signs it. The corporate officer
sends it back to the general counsel.
The general counsel has an account
and then submits.
So that's the same. Nothing,
nothing changes there.
There's no reason for
someone who's just signing
to have to go through the ID
verification process
and have an account.
Now they can have an account
to follow, you know,
and they don't have
to verify the account.
They can just use the widget functions.
So that's one thing
I don't think we've said.
So if you don't have, if your account
is not verified by August 6th,
you keep your account.
You just can't file anything,
but you can track things.
So we're not we're not sort of
just eliminating all of these accounts.
They're still there.
But you just can't file.
-Right.
That's a good point.
There's no shut off
that happens for your account
and access to your personal account
on August 6th.
It's just if it's not verified
and you go to file,
you won't be able to
until it's verified.
-Okay.
"I am doing the trademark
renewal for my company.
I am in the marketing department
and have been asked
by the owner to take
care of the renewals.
Will I be able to log in
and see the information
for the renewals?"
Okay.
If you are
a corporate employee
and you are not supervised
by an attorney,
you may not practice law
before the USPTO.
That means
that you cannot prepare submissions
to the USPTO
without an attorney supervising you.
Now you can prepare a submission
if the corporate,
if a corporate officer
or somebody with authority
to bind the corporation, the LLC,
whatever, partnership,
if they direct you in everything
and you're just writing down
what they tell you to say,
"mere scrivener," that's that quote.
"Mere scrivener."
If that's what you're doing,
you can have an owner, an ID
verified account with an owner role,
but you cannot practice law.
So you got to be careful here.
Now you can see any of our records
without a USPTO.gov account.
You can go in and look at whatever
you know, your trade, your company's
trademark registration.
You can see when the renewal's due.
You cannot file a submission
after August 6th without an ID
verified account.
And you have to choose
or your user role at that time.
You cannot choose a user role
if you are a non-attorney
entity practicing trademark law.
You can't. Because
you're not practicing.
You're not, you're not an attorney,
so you can't practice trademark law.
So, again,
this is a difficult situation.
It's worth, you know,
talking to OED, the Office
of Enrollment and Discipline
and finding out if your particular fact
pattern is okay.
The easiest thing to do,
it's expensive, is to
have an attorney on staff
who is supervising you.
That attorney has an account
and you are an attorney-sponsored
support staff account.
That's the way to do it.
So if your company
has a general counsel,
have them create an account,
ID-verified, choose the
the attorney role,
and then they sponsor
you as support staff.
If there's no attorney in
your corporation,
then that's a much harder fact pattern.
And then you're potentially walking
into the unauthorized practice of law
if you are preparing a submission.
Again, if you are merely scribing down,
merely writing down,
what a corporate officer is telling
you should go in the application,
okay.
You can have an account.
But you got to be
careful about that line.
So hopefully that helps.
What'd
I miss, guys?
-That's right on point.
Call, call OED if you have questions.
Check with your local bar
jurisdiction to see what
unauthorized practice is
in your jurisdiction.
Those are good things to do anyway.
So that's what we recommend.
-I think there's there's two here
that I could knock out pretty fast.
"If we already filed an application,
do we still need to verify our identity?"
So.
I'll pull back the curtain.
And there's a term
in the trademark examination
corps called a "first action pub."
for "first action publication."
If you have done everything
perfectly right in your application
and it goes through and sails on
and it registers
you,
then you don't need
to verify your identity
until you need to file something.
And in that case,
that's going to be six
or seven years down the road.
However, for most people,
this is not the case.
You will need to file an SOU
or a response
or something else
after your initial application.
So I would encourage you,
especially if you
think you're going to file
more than one trademark,
again, to knock it out
in a convenient time for you
to become verified
so that you won't be up
against any deadlines
that you don't appreciate
when it comes time to file.
And then the law school clinic question.
"Are students in the law school clinic,
are they going to be considered
attorney support staff?"
Yes, they will be sponsored by the
supervising attorney in that law clinic
and they will be attorney
support staff
and they will have
the full rights of that role.
When they pass the bar,
presumably sometime after the clinic,
they can email the email address
TEAS@uspto.gov
and use that request form
that we saw to change their role.
That was on one of the earlier slides,
and they can move into the
U.S.-licensed or
Canadian attorney or agent role.
-So my boss wanted me
to clarify something
about the marketing
department question.
So if that corporation
with the person who,
the marketing department,
who's handling the trademark renewal,
we said if there's no attorney in there
in that corporation,
you really have to be careful here.
You need,
you need to have an attorney
supervising you.
Now, what my boss said is, well,
what if they have outside counsel?
Okay, yeah, fine.
You know, no problem.
The outside counsel,
the counsel is handling it
and the marketing person
is just talking to outside counsel
who is making the filing.
So that's fine.
There's an attorney there
and in the chain.
The marketing department person
actually doesn't really need an account
if there's an outside attorney
handling anything,
handling the filings.
So that would be a fact pattern "B"
that we needed to add there.
Thanks, boss.
Okay.
"What if I'm an employee of a company
for which I'm being asked
to manage the trademark?
What happens if I leave the trade,
the company eventually."
So you are, you have an
ID-verified account as the owner
and you leave and that, your account,
has been tied to all of the filings
from that owner.
So once you leave, then,
we need to get you
out of that owner role.
You still can have a verified account.
But the question is,
you know, do you still need,
what role are you?
Well, it depends on where you go next.
When we get to phase three,
we'll figure out the withdrawal,
I guess.
I don't know if withdrawal
is the right term, but we'll figure out
how do we get you out of that.
Because you should not be able
to retain access to all those filings,
right?
Because you're not,
you're no longer at the company.
And in that sense,
it's probably up to the company
to try to make sure
that they're handling
all of the USPTO.gov accounts,
you know, cutting off the ones
where the person has left
or what have you.
So that is something
that we will address in future
iterations of phase
three as we move forward there.
-Yes. Yes.
The business requirements
are continually ongoing
for phase three.
And,
you know, in terms
of choosing a role now, again,
choose the role
that is appropriate for you.
It's quite likely that, you know, people
are going to change the level of access
but keep the same role.
And there are going to be some times
when people change roles as well,
but want to keep the same
access or change it. So we are
diligently working on
ways to make sure
that people have access to the files
that they're entitled to
while still providing a high level
of security for filers,
so they are not harassed
by outside parties
who are unrelated
or making changes or filing
changes of correspondence
on their, on their
applications or registrations.
-Okay.
"You must verify your identity
if you are a trademark owner
or corporate officer
not represented by an attorney.
So a corporate officer of a corporation
as an owner, president,
can sponsor the paralegal staff?"
No.
Several corporations
are in the same situation
and it's not clear. And I apologize.
We've gone through so much information,
so I know it's confusing. Okay.
The corporate officer,
president of a corporation,
has the authority
to bind the corporation
and has the authority
to prepare the applications
on behalf of the corporation
and sign them and submit them
as the president of the corporation.
Okay.
Down from there then,
right?
Not a corporate officer. Their,
the authority to sign,
could be.
Depends on the fact pattern, right?
But there is no sponsorship
in the owner role.
There's sponsorship
in the attorney role
because attorneys are under all kinds
of ethical obligations
to directly supervise.
So we felt comfortable
in creating that, that
in in the attorney space.
There's lots of ways
to hold attorneys accountable
for their directly
supervised staff
if they don't do a good job.
In the owner space,
it's less so. Less clear.
So who is speaking
on behalf of the owner?
And that, again,
that's where we want to be, have
have the assurances
that this is the owner's wishes.
So to the extent that,
you know, a corporation has,
you know, employees
who are not supervised by an attorney,
who are not directly supervised
by the corporate officers,
we don't have assurances
that those people are filing,
you know, on behalf of the owner
and speaking for the owner
and can bind the owner.
So it gets murky in this situation.
And this is where
we're trying to be really
clear, but I'm not sure
we're succeeding,
and I apologize for that.
If there is no attorney
in that corporation
and somebody is doing
trademark preparation work,
that attorney is,
that non-attorney
is probably engaging
in the unauthorized practice of law.
So that is not good.
Now, how do you solve that?
You get an attorney
in the corporation
or you get outside counsel
with an attorney.
Either of those scenarios.
Put an attorney in the chain either way
and you're okay.
And then whoever
is preparing the application
under the direct supervision
of the attorney, we're good.
But then you have an attorney
and attorney support staff
within the corporation,
and that's fine. Or externally.
The only problem is
when there's no attorney involved.
Then we are in the
unauthorized practice of law,
UPL, as we call it,
UPL territory potentially.
And the way to save that
is to have the employee
who has a USPTO.gov account
to be a mere scrivener
and say, write down
exactly what the corporate officer,
the president is saying
should go in there.
But that person cannot
provide legal advice.
They cannot provide
a trademark clearance search
with registrability opinions,
and they can't do anything
that is the, considered
the practice of law before the USPTO.
So we're going to
give, allow an account in that situation
and we leave it to the corporation to
to make sure that that person's
not practicing law
when they're not supposed to be doing.
Did I get any better on that,
any more clarity on that?
I hope.
Well, I have a feeling
will be asked that again
with a different fact pattern, right?
-I don't want Amy to be
the only one who has the thrill
of citing federal rules
during this webinar.
So one of the reasons that, you know,
we have this sponsorship model
and the support staff model
is because it is expressly mentioned in
37 CFR 11.5. Nothing
prescribes a practitioner from employing
or retaining
non-practitioners,
support staff, or assistance.
And so that is where,
you know, this all sort of flows from.
You know, it's, it's
this way, this
and this is a USPTO wide provision,
not just for Trademarks.
And that's why Patents
has the same arrangement.
And, you know, those of you
who practice in both fields
would notice that,
you know, we've sort of got the same,
the same arrangement.
And it's going back to this, right?
We know we have a list of
who can be a practitioner.
And in this case, it's
Canadian attorneys and agents and
U.S.-licensed attorneys for
for trademark filing.
And we know that they are authorized
to retain non-
practitioner support staff.
And then everybody else,
you know, is not in that boat.
And they are not bound
by the same ethical rules
and obligations as the attorneys are.
So that is why the owner role
seems to be a little more
fluid and a little more,
a little a little tougher to
define because it's
really not defined in our rules.
So it's it's sort of what, you know,
either you are essentially the owner
or you're holding yourself
out to the public
as someone who's representing clients
in the practice of trademark law.
And that's the line.
And if you're associated on
the practice of law side,
there's additional rules.
You can have support staff
and otherwise, you know, no,
you don't have that sponsorship ability
because you're not bound
by those same rules. So.
And I think we just lost
100 attendees from that.
Sorry.
-Okay, it looks like.
"Can you sponsor support staff
that is a contractor
and not an employee?
She, of course, would be supervised
by the attorney."
So I guess there's an attorney
and then you've got
a paralegal, an outside paralegal
who is the support staff
for the attorney,
if I'm getting the fact pattern right.
So if that person is
an employee or retained
under,
if you go look at the rule
that Matt just cited, so
exciting, 37 C.F.R. 11.5(b),
the practitioner can employ
or retain non-practitioner assistance
under the supervision
of the practitioner
to assist the practitioner in matters
pending or contemplated
to be presented before the office.
So that's the, that's the,
the practice of law part.
So the, that that person, to the extent
they are employed or retained by you,
the attorney, that's fine.
Now you're asking whether they can.
No, that's the another one
that you assigned.
Can you sponsor.
Yes.
So you can sponsor.
I'm making sure.
-You know, I think
one other resource
that we haven't mentioned
that actually covers this fairly
well and that you'll
be getting an email
about an update to soon
is something you've
you've all agreed to. It's
the USPTO trademark
verified account agreement.
And what this is, is for your USPTO.gov
account.
There's a brief eight-page document
that I'm sure we all read through,
but it explains a lot of
these things and binds you.
And it explains in
even a little more detail than the rule
what exactly is expected
in the sponsorship role.
So when you are sponsoring someone,
what relationship can they have to you?
So that's another good resource,
you know, for, for any,
any other questions
like these with the
various fact patterns,
it goes into a little more detail.
-Now that account agreement,
we are updating with
all of this information
that we provided today.
We are releasing that in the next week.
So you will get an email
as an account holder
that there is a new agreement
to which you would be bound
and it will have
all of this information.
So if you go looking for it right now,
this information won't
necessarily be in there.
All of the information
we're providing today.
It will be when you get an email saying
we have updated this agreement.
At that time, we will also have
a new web page with user role
information on it available to you.
We already issued a Federal Register
Notice on Monday, on Monday,
about the user roles and the ID
verification program.
So hopefully you can
find all of that information,
but we will be putting out more
information, as Matt said.
-Yes.
And I'm sorry.
I didn't mean to mislead.
The account agreement is forthcoming,
and we'll have a new section on roles
that's not in the current one.
-"As an in-house paralegal working
under the supervision
of in-house general counsel,
can I sign maintenance
or renewal applications for existing
trademark registrations?"
Well, that's kind
of a different question.
Signatory authority.
And if you recall
the slide that I put up
about who who can sign,
and it depends
if it's a verification or a fact
or if it's a response.
I wonder if I should put up that.
Did it go?
Okay.
So here's a signature.
So if you can meet
any of these criterias,
then you can sign.
But if you don't, then you cannot.
So again, go to the signature rules
and then you'll have
a little bit more clarity.
Bob, do you have anything
to add on that one?
-No, that's what I was going to
say, is to consider
what it is you're signing
and what the particular signature is,
and that will tell you whether you're
authorized or not.
-All right.
I'm going to pull this down now
so I can see the chat.
"What does it mean, "owner"?
Does an employee
of the corporation count
under this category?"
It depends on the nature
of the employee, as we said.
So owner, generally,
if it's an individual, that's an owner.
When if it's a corporate
entity, it's generally
going to be a corporate officer,
someone who has the authority
to bind the corporation.
But we will allow
an owner account to be held
by a direct employee
without a financial interest
in the outcome of the
registration process.
So not outside. Inside.
Who is acting as a mere scrivener
for the corporate officer
unless there is an attorney on staff
there who's directly
supervising that employee.
I understand that's a little confusing,
but hopefully we've
gone over it enough.
-I see two that I can
knock out pretty quick,
just technical questions.
"What if your legal surname differs
from the surname under
which you practice as an attorney?"
Please note that you are verifying
the information in your
USPTO.gov account.
This does not currently affect
the filing that you're making.
So we will need to have a name
that matches your ID
when you verify your identity,
either before the notary
or before the online
verification process.
However,
you can still sign as you see fit.
You can introduce yourself
to your clients as you see fit.
As long as it doesn't indicate
that it's a completely different person
in a way that would
that would arouse our suspicions.
These kinds of things are fine.
But
but the information
contained in your USPTO.gov account,
it does have to be verified
so that we can confirm your identity.
-But it's not
pre-populating your filings.
-Right. Correspondence information
and your attorney information
in the TEAS filing
is as you enter it. -Right. -And
same with signatures.
The signature is
the signature that you enter.
And also
if you are a law clerk
or summer associate,
should you sign in
under the attorney role?
Please do not start your legal career
by getting an email
from Amy and/or OED.
If you are not an attorney,
please do not select the attorney role.
I believe in this case
the support staff role would suit you
as a non-practitioner assistant
who's being supervised by an attorney.
-Okay.
Where are we now?
You seeing.
Oh, it's 3:30.
-We are getting close to time here.
We have about two minutes
left in session.
So if there are any that we can do
quickly, sort of
like a rapid fire thing.
Otherwise we can,
we can make sure to try and answer
as many as we can
by posting things on the website.
-Yeah.
"Is ID verification one time or annual?"
At this time it's one time.
And if for some reason
there's any issues with that,
then it may be something
we revisit. At this time
it is a one-time process.
We're not planning
on doing it annually.
-"If an attorney does not go
through the verification
process, what happens?
Can they still make filings?" No.
August 6th? No.
So you got to verify
if you want to keep
making filings.
If you don't have any
filings due right then,
you can wait
until you have a filing.
But that might not be,
you know,
you don't want to miss any deadlines.
-"I use two email addresses
for filing: one for firm where I'm of counsel
and another for my own firm."
So you're verifying
your USPTO.gov account
that governs your access to TEAS. Again,
you can still use the correspondence
and email information of your choosing
on the filings that you're making.
However, when you log in,
we do need to identify
one particular person
and you can only verify one account.
-I like this question.
"Does USPTO recommend that
a trademark owner open an account
even if all filings, including
verifications, will be
made by an attorney?"
You don't have to,
but if you're going
to change attorneys,
if you want to withdraw the attorney,
withdraw representation, then, you know,
if you want, if you're going
to switch counsel midstream,
you might want to be able
to have your own account
so that if there's a gap
in your representation
by an attorney, that you don't miss
any filing deadlines.
And then you have the ability
to to file on your own pro se,
if you're not represented at that time.
But that would be the only situation
where you would need to have your own.
And so it might be nice to have,
but not not necessary.
-"Does this also apply to TTAB filings?"
Not at this moment.
We are always considering ways
to streamline our processes
and work across business
units, but not at this time.
"Can attorney support staff be verified
before the attorney has been verified?"
No. Attorney support staff
must be verified
by a verified attorney.
Must be sponsored
by a verified attorney.
-Michael raised something about offshore
screen sharing. I don't know.
I got to figure that one out.
That's a new fact pattern for me.
So let me look into that.
Thank you for bringing that
to our attention now.
Credit profile.
Matt, quickly, see that one?
-Credit profile is not optional
in the self-service process.
They will, it will try to do it
and it relies on it.
However, it
is not required for the
in-person video chat,
but they may require
additional verification.
There are some people
who won't have credit profiles
or have it frozen,
and we do not recommend
that you unfreeze it
just for this process.
So there is a way to get through it
if you have a freeze on your credit
or an incomplete or no credit profile.
But that has to be going through the
video chat session.
Either you're routed through it
through self-service,
or you choose video chat upfront.
-"Can an owner who's also a
corporate officer become verified?
And would that be the owner role?"
Yeah. Yep.
"Can there be more than one
ID-verified owner for one company
with multiple trademarks?" Yes.
-Verification is for people,
not entities.
So no corporate entities.
You can't verify those. Individuals,
please identify.
-"Did the access rules impact
payment of maintenance
and renewal fees?"
So was that if you were
to pay a fee, don't you need a form?
And if there's a form,
then you needed a
verified account, right?
And then.
Yeah, right. Okay.
We'll have to think about that one.
-Yeah. Payment of fees.
I verify for the IRS
or some other agency,
yes.
Actually, about 30%
of our verifications
are people who are coming in
who have already been verified
through another agency,
typically VA or IRS. So, yes.
It's portable.
-All right.
We're at 3:32.
If you have further questions,
where did we want them to go, Jason?
Did we want them to go to TEAS@uspto.gov
or to TMfeedback?
-Um, TMfeedback.
TMfeedback@uspto.gov.
If you have additional questions
that that weren't
particularly answered today.
I see one right in front of me.
I can I can answer this
one really quickly.
"Is there a way to get
CLE credit for that, for this webinar?"
And the answer to that is, "No."
We have not asked
for CLE verification
for for this webinar,
so unfortunately it's not eligible.
So we're going to
close it down for today.
So sorry about that.
If we were unable
to get to your question by,
by all means, if you still have a question
that we did not answer today,
shoot an email to
TMfeedback@uspto.gov.
We'll do our best to answer it.
And as we've already said,
if there are topics that we
need to post about,
we're going to be posting about those
just to make sure that we've clarified
everything that we possibly can.
So thank you very much
for being with us today
and asking such great questions.
This is clearly a complex topic,
you know, and there are, as Amy said,
there are lots of
different fact patterns
that are at play here
because everybody has
a different situation. So we get it.
We understand that you may be having
a little bit of difficulty
with it, maybe trying
to work your way through it.
And that is okay because we all are.
So just remember
that the verification process
is intended to help protect you
as a trademark owner
or as a practitioner.
It's also meant to protect
the trademark register as well.
So it's not about trying
to make things more difficult,
it's just trying to
make things more secure for everyone.
So just a quick reminder,
you might have already received it,
an email from Eventbrite.
It probably went out
a couple of minutes ago.
It's going to have a link
to the slide deck.
So if you want to look
through today's slides,
you can download them
by just opening up that email,
clicking on the link.
It'll take you to a downloadable
version of the of the slides.
Also in
there is going to be a survey link.
So again, it's a pretty quick survey.
Should only take you
a couple of minutes
and we would encourage you
to fill it out.
We do love to hear what you think
and so we can hopefully
respond to those
and so we can always try and do better
next time.
So thank you very much again
for being with us today.
Take care and we'll talk to you soon.
Bye.