Making Dollars & Sense of the USPTO’s New Trademark Application Fees

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On November 18, 2024, the USPTO announced final rules for the long-awaited adjustments to trademark fees for 2025.  The finalization of the fee adjustments were eagerly anticipated by the trademark community following the Notice of Proposed Rulemaking issued in March 2024, which sought not only fee changes, but changes to the way US trademark applications would be filed.  Now that the changes are no longer proposed changes, and are slated to go into effect on January 18, 2025, let’s look at what they include, and how they may impact the way trademark applications are filed at the USPTO.

Out with the Old…

Presently, the USPTO has a two-tiered system for filing new trademark applications including the TEAS Plus and TEAS Standard options, both of which are being eliminated by the final rules.

In the TEAS Plus option, applicants pay a filing fee of $250 per class, but must meet several requirements set out in 37 CFR 2.22, including, for example, using a menu to select all of the goods or services from the Trademark Identification (ID) Manual and providing various additional statements required by 37 CFR 2.22, if appropriate. If an applicant files under TEAS Plus and fails to meet the requirements, an additional $100 fee is charged.

In the TEAS Standard option, applicants pay a filing fee of $350 per class and do not need to meet the requirements noted in 37 CFR 2.22.  The TEAS Standard option allow applicants to enter the goods and services via free-form text, if the goods and services are not in the Trademark ID Manual, for example.

…In With the New

Under the new fee structure going into effect on January 18, 2025, the TEAS Plus and TEAS Standard options are being discontinued in applications filed under Sections 1 and 44 of the Lanham Act and replaced with a new fee system including a base application fee combined with a series of surcharge fees where the applicant does not meet certain requirements in the application filing.  These fees are summarized below:

For those who frequently utilize the TEAS Plus filing option, while the filing fee per class is higher ($350/class vs. $250/class), the difference in the filing requirements may seem less significant, despite the added surcharges.  This is because in the final rules, 37 CFR 2.22 currently applying to TEAS Plus applications, is being renamed “Requirements for a base application” and the information required for a base application to avoid the insufficient information and free-form text surcharges will be the same as currently required to avoid the fee for failing to meet TEAS Plus requirements.  For attorneys and applicants who do not utilize TEAS Plus, the changes in the fee structure may seem more significant.

Any application utilizing the free-form text entry option will incur a $200 surcharge per class.  For example, if an applicant files a Section 44 application off a Canadian registration identifying at least one good that is not in the USPTO’s ID Manual, and the goods filed in the US application match those in the Canadian registration, the $200 fee will be charged because it will be necessary to use the free-form text entry to identify that (at least one) good not in the ID Manual.  This is even if the identification of goods is in fact acceptable as filed.  Use of the free-form text box in the application will not trigger the “insufficient information” surcharge.

To avoid the “insufficient information” surcharge, applicants must meet all the other requirements of new 37 CFR 2.22(a)(1) through (a)(19), including for example:

• If the mark includes color, a statement naming the color and describing where the color appears on the mark, and a claim that the color is a feature of the mark.
• If the mark includes non-English wording, an English translation of that wording.
• If the mark includes non-Latin characters, a transliteration of those characters.
• If the mark includes an individual’s name or likeness, either: a statement that identifies the living individual whose name or likeness the mark comprises and written consent of the individual; or a statement that the name or likeness does not identify a living individual.

The third new surcharge fee is intended by the USPTO to limit the length of goods and services by charging a $200 fee per 1,000 characters in a class after the first 1,000 characters, including punctuation and spaces [Note: as a reference point, this paragraph is about 575 characters].  This surcharge only applies to the identification of goods or services as filed in an application using the free-form text entry option.  If the applicant selects goods from the USPTO’s ID Manual and exceeds 1,000 characters, the surcharge will not be applied, and the surcharge applies only at filing, and will not be charged if identifications are amended to add exclusionary or specifying language.

Practice Notes on the New Fee Structure

A few practical takeaways for practitioners to consider with the new trademark application fee structure and surcharges:

1. To avoid the fee increase applicable to all applications filed on or after January 18, 2025, applications can be filed on or before January 17, 2025, particularly applications that may be more heavily impacted by these new requirements, such as those which would include goods or services outside of the USPTO’s ID Manual or that are long;
2. To the extent that the additional information required for a TEAS Plus application has not already been part of an attorney’s new application intake process, it may need to be included in the future, as these are now base requirements for all applications, and will be subject to the insufficient information surcharge fee if they are not met; and
3. For those interested in minimizing the USPTO filing fees for an application, greater focus will need to be placed on the USPTO’s ID Manual when preparing identifications.  Currently, the cost for using the free-form text option instead of the ID Manual menu to select the goods and services in an application is $100 per class (the difference between TEAS Plus and TEAS Standard).  Under the new fee structure, the cost for using the free-form text option instead of the ID Manual is doubled to $200, plus an extra $200 if the character count exceeds 1,000 (for each 1,000 character interval).

What About US Applications filed through the Madrid Protocol?

The new fee structure outlined above applies to Section 1 and Section 44 applications.  Perhaps the most significant change that the final rules make from the earlier proposed rules, is that the new fee structure with surcharges will not apply to applications entering the US through the Madrid Protocol under Section 66 of the Lanham Act.

The USPTO has dropped the inclusion of Section 66(a) applications from the new fee structure, and is instead raising the existing flat application fee for these filings from $500 per class to $600 per class.  The same fee increase also applies to subsequent designations.  The USPTO states that “[t]he $600 fee is commensurate with what Madrid applicants would expect to pay, on average, if filing directly under the base application and surcharge system.”

Because of Madrid Protocol requirements in providing notice to WIPO for such fee changes, the increase in fees for Section 66(a) applications will not go into effect until February 18, 2025.

But Wait, There’s More!

While the headliners of the fee adjustments may be the structural changes and increases in the application fees, the USPTO announced several other fees are increasing, including:

Should attorneys and applicants wish to avoid the fee increases for any of these filings, January 17, 2025 is the deadline for submissions under the current fee schedule.

For additional information on the USPTO fee adjustments, including a more detailed explanation of the USPTO’s rationale and response to comments on the proposed rules, visit the USPTO’s webpage on Fee Setting and Adjusting.

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