Answer
What can I do after a final refusal?
Lawyers call this: final Office Action · request for reconsideration · ex parte appeal
Short answer
You have three moves: ask the examining attorney to reconsider, appeal to the Trademark Trial and Appeal Board, or both at once. The deadline is the same as for any Office Action: usually three months, with one three-month extension for $125. A Section 66(a) (Madrid) application gets six months, with no extension. A request for reconsideration does not stop the appeal clock. If you want to keep the appeal open, file the notice of appeal before the deadline even while reconsideration is pending.
What changes the answer
- Whether you have something new to offer
- Reconsideration works when you can change the facts: new evidence, a narrower list of goods, a disclaimer, or a claim that the mark has become known as your brand. Repeating the same argument rarely moves an examining attorney who has already gone final.
- Whether your evidence is already in the record
- The Board decides the appeal on the record built during examination. Evidence should go in before the appeal is filed. A request for reconsideration is the usual way to add it.
- Whether you are fighting a refusal or a requirement
- A substantive refusal, such as 2(d) or descriptiveness, goes to reconsideration or appeal. A purely procedural requirement can also be taken to the Director by petition. Address every outstanding refusal and requirement. Whether a requirement is reviewed by the Board or by petition to the Director depends on its nature.
- How many classes are involved
- The appeal fee is charged per class. You can appeal some classes and let others go.
The rule
After a final action, the applicant may file a request for reconsideration, an appeal to the Trademark Trial and Appeal Board, or a request for an extension of time to respond or appeal. 37 C.F.R. § 2.63(b)(1) (2026). The deadline is the same response period that applies to any Office Action: three months, extendable once by three months for a fee, or six months with no extension for an application under Section 66(a). 37 C.F.R. §§ 2.62(a)(1)–(2), 2.142(a)(1) (2026).
A request for reconsideration “does not stay or extend the time for filing an appeal or petition.” 37 C.F.R. § 2.63(b)(3) (2026). If reconsideration does not clear every refusal and requirement, and no appeal was filed on time, the application is abandoned. 37 C.F.R. § 2.63(b)(4) (2026). When you file both, the Board suspends the appeal and sends the file back to the examining attorney to decide reconsideration first. U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure § 1501.02(a) (May 2026) [hereinafter TMEP].
An appeal starts with a notice of appeal and a fee of $225 per class, filed electronically. 37 C.F.R. §§ 2.141, 2.142(a)(3), 2.6(a)(18)(ii) (2026). Your appeal brief is due 60 days after the appeal is filed. If the Board has suspended the appeal for a request for reconsideration, the 60 days run instead from the date the Board resumes the appeal after reconsideration is denied. Trademark Trial & Appeal Bd. Manual of Procedure § 1204. A separate appeal brief fee of $200 per class applies. 37 C.F.R. §§ 2.142(b)(1), 2.6(a)(18)(vii) (2026). The first extension of time to file the brief is free; later ones cost $100 per application. 37 C.F.R. § 2.6(a)(18)(iii), (v) (2026). The examining attorney answers within 60 days, and you may file a reply brief within 20 days after that. The main brief is limited to 25 pages and the reply to 10. 37 C.F.R. § 2.142(b) (2026). The record should be complete before the appeal is filed. 37 C.F.R. § 2.142(d) (2026).
A Board decision can itself be appealed to the U.S. Court of Appeals for the Federal Circuit or challenged in a federal district court. 15 U.S.C. § 1071.
What to do next
Decide early whether you will appeal. The record should be complete when the appeal is filed, so put the evidence you want the Board to see in with your request for reconsideration or before.
A final action on a requirement the examining attorney has spelled out, such as a disclaimer or narrower wording for your goods, is often something you can accept yourself in a request for reconsideration, if you are domiciled in the United States. An applicant domiciled elsewhere must act through a U.S.-licensed attorney. 37 C.F.R. § 2.11(a) (2026). A final 2(d) or descriptiveness refusal is different. The appeal is litigation before the Board, on a fixed record, with briefing deadlines. Board decisions on appeals like these are the core of this research library.
If you have a final refusal, Valet Law, PLLC can review the record and tell you whether reconsideration, appeal, or both is the better path.
Attorney review is provided by Valet Law, PLLC, a law firm separate from Trademark Valet, LLC. Keep confidential facts out of public tools. Your first message to Valet Law should identify the parties and the general issue only. Wait until Valet Law confirms it can discuss the matter before sending confidential details.
Who checked this
Reviewed and approved by Brandon Leavitt on 2026-10-02.
General information about how trademark law works. It is not legal advice about your situation, and reading it does not make anyone your lawyer.