Navigating an appeal before the Trademark Trial and Appeal Board (TTAB) can be complex, but what happens after the appeal process begins is equally critical. Whether you’re seeking to modify your application, introduce new evidence, or challenge a refusal on different grounds, the post-appeal phase offers procedural tools that can significantly affect the outcome of your case. This article demystifies the core post-appeal mechanisms—reset, remand, and reconsideration—offering practical guidance drawn from recent TTAB tips and rule interpretations.

The Landscape After Filing a TTAB Appeal

Once a trademark applicant receives a final refusal from an examining attorney, they may choose to file a notice of appeal to the Trademark Trial and Appeal Board. From that point forward, procedural precision becomes paramount. The TTAB rules, as codified in the Trademark Rules of Practice and detailed in the Trademark Trial and Appeal Board Manual of Procedure (TBMP), impose strict boundaries on what can and cannot be done during and after the appeal. One key rule to remember is that the appeal record is essentially frozen at the time the appeal is filed. New evidence submitted afterward is not automatically accepted unless procedural rules are carefully followed.

Reconsideration: A Tactical Option Before or After Filing

A request for reconsideration is often the first option considered when an applicant believes the examining attorney overlooked relevant evidence or misunderstood a legal argument. This request can be filed in tandem with a notice of appeal, and in some cases, it can delay the need to fully brief the appeal. However, applicants should be cautious when relying on this tactic. If the examining attorney issues another Office Action following the request—especially one that reiterates the refusal—the applicant cannot simply file another reconsideration. At that point, the only viable route is to seek remand from the Board.

Recent TTAB tips stress that timing is critical in this process. For example, if a new refusal is issued after a request for reconsideration is filed, the applicant may feel tempted to submit a second request. But under current rules, only a formal motion for remand to the examining attorney will be considered appropriate. This ensures that the appeal process remains orderly and efficient, reducing unnecessary delays while preserving the applicant’s right to have the case properly evaluated.

The Mechanics of Remand: When and How to Request It

Remand is one of the more underutilized but powerful tools available in TTAB practice. This procedural step allows an applicant to request that the Board return the case to the examining attorney for further examination. Most commonly, this occurs when an applicant wants to amend the application—such as by narrowing the identification of goods or services, or by switching the application from the Principal Register to the Supplemental Register.

According to recent TTAB tips, requests for remand must be filed before the Board issues its final decision. A remand request should be carefully drafted to demonstrate that the proposed amendment may moot or resolve the refusal. For example, in cases involving Section 2(d) refusals for likelihood of confusion, narrowing the goods or services may significantly reduce overlap with the cited registration. If the amendment is deemed acceptable, the examining attorney may withdraw the refusal, potentially eliminating the need for a full appeal.

It’s important to understand that the Board has no obligation to grant a remand. The request must be accompanied by a showing of good cause, and the proposed amendment must be concrete and substantive—not hypothetical or contingent on the outcome of the appeal. Practitioners are advised to file remand requests as early as possible in the appeal process, ideally before the briefing schedule is fully underway. Once the Board has invested time in reviewing the case, it becomes far less likely that a remand will be granted.

Resetting the Timeline: What Happens When Deadlines Are Missed

In some situations, applicants may find themselves needing to “reset” the appeal timeline due to missed deadlines. While TTAB procedures allow for motions to extend time, the standard for granting a reset changes significantly once a deadline has expired. Before a deadline passes, parties only need to show “good cause” to obtain an extension. After the deadline, the standard shifts to “excusable neglect,” a higher burden requiring proof that the delay was reasonable, unintentional, and not due to a lack of diligence.

The TTAB evaluates excusable neglect using a balancing test that includes factors like the reason for the delay, the potential impact on the proceedings, the risk of prejudice to the opposing party, and whether the movant acted in good faith. These are not easy hurdles to clear, especially in the formal and structured setting of TTAB litigation. Therefore, counsel must take care to docket all appeal deadlines meticulously and file motions to extend in advance, not as a reaction to missed opportunities.

Improper Amendments in Briefs: A Common Misstep

One of the recurring procedural errors addressed in TTAB tips involves the inclusion of alternative amendments or conditional disclaimers within appeal briefs. Applicants often insert statements like, “If the Board finds the mark not registrable, we are willing to amend to the Supplemental Register.” This may sound pragmatic, but it’s procedurally improper.

Amendments of this nature must be requested by filing a motion for remand. Including them in the body of an appeal brief does not place them properly before the examining attorney for review. Worse, such inclusions may confuse the Board and result in a denial of the appeal without full consideration of the applicant’s options. The correct approach is to formally request remand with the proposed amendment clearly explained and justified.

Final Thoughts: Strategy Matters Beyond the Initial Filing

Successfully navigating a trademark appeal before the Trademark Trial and Appeal Board requires more than just arguing the merits. It demands a deep understanding of the procedural landscape, especially when seeking to alter the course of an appeal. Requests for reconsideration, motions for remand, and attempts to reset missed deadlines each require specific filings, strict timing, and clear articulation of purpose. The TTAB has made it clear through recent practice updates and procedural reminders that practitioners must adhere closely to these standards if they hope to achieve favorable outcomes.

For those representing clients before the Board, keeping up with the latest TTAB tips is not optional—it’s essential. These guidelines reflect the current expectations of the Board and offer insights that can shape the trajectory of a case even after the appeal has begun. Mastering these post-appeal procedures will not only safeguard your client’s rights but also demonstrate the professional diligence that the TTAB expects from practitioners who appear before it.