TL;DR: A Letter of Protest is a formal procedure allowing third parties to present evidence to the USPTO to block a pending trademark application. When used correctly, it is a highly effective, low-cost alternative to a full trademark opposition, but it requires specific legal grounds to be successful.
While they only come into play in a small percentage of trademark applications, Letters of Protest are an essential tool for protecting your brand. Whether you want to challenge someone else’s trademark filing or you find yourself on the receiving end of a dispute, understanding how this process works is critical.
Here is what you need to know about navigating Letters of Protest at the United States Patent and Trademark Office (USPTO).
What is a Letter of Protest?
A Letter of Protest allows an outside third party to intervene in a pending trademark application. By submitting relevant evidence to the USPTO, the third party attempts to bring specific facts to the trademark examiner’s attention before the application receives final approval or is published for opposition.
If successful, this letter can block or significantly alter the examiner’s review of the application.
Why File a Letter of Protest?
The primary advantage of filing a Letter of Protest is efficiency. If the USPTO accepts your protest and refuses the applicant’s trademark, you save significant resources.
A successful letter is drastically less expensive and less time-consuming than waiting for the trademark to be approved and launching a formal Notice of Opposition through the Trademark Trial and Appeal Board (TTAB).
Valid vs. Invalid Grounds for a Letter of Protest
Because Letters of Protest have increased significantly in recent years, there is a lot of misinformation online about how to use them. The most common mistake business owners make is filing a protest without legally recognized grounds.
❌ Invalid Ground: Prior Use
The most common misconception is that you can block an application simply because you used the name first. This is not an acceptable basis for a Letter of Protest. The USPTO charges a $50 filing fee per letter (a rule introduced in 2021). If you file a protest stating, “I have been using this name for five years,” your letter will be dismissed, your fee will be wasted, and the examiner will not be allowed to block the application.
✅ Valid Grounds for Protest
To successfully intervene, you must provide the examiner with hard evidence based on specific legal grounds. The most common acceptable grounds include:
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Likelihood of Confusion: Providing evidence of a prior trademark application or active registration for a name that is confusingly similar to the pending application.
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Descriptiveness: Providing evidence that the applied-for mark is merely descriptive of the goods or services.
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Genericness: Providing evidence that the applied-for mark is a generic term that should remain free for all businesses to use.
What to Do If You Need to File (or Receive) One
Letters of Protest are highly technical. The rules governing them are deeply rooted in the Trademark Manual of Examination Procedures (TMEP).
Because these filings are complex—and because receiving one is often a sign of a larger, forthcoming trademark dispute—it is highly recommended that you consult with an experienced trademark attorney. An attorney will ensure you have valid grounds, proper evidence, and the right strategy before spending money on filing fees.
View a Real Example: Wondering what these documents actually look like? Check out this real example of a Letter of Protest from our archives to see the structure and evidence required.
If you need assistance drafting a Letter of Protest or defending your application against one, contact Erik M. Pelton & Associates today to discuss your options.
