Brand owners face a changing landscape at the U.S. federal registration level as the U.S. Patent and Trademark Office (“USPTO”) implements a new fee structure. These changes have important implications for trademark registration strategies, budget planning, and risk management around trademark prosecution and maintenance. The USPTO’s key regulatory changes include fee revisions under 37 C.F.R. Part 2.  In addition, the USPTO has published new data regarding first action and total pendency of trademark applications. While the underlying statutory framework under the Lanham Act (15 U.S.C. § 1051 et seq.) remains largely unchanged, the operational cost structure, filing strategy and timeline considerations are changing.

The USPTO’s 2025 fee changes mark a significant shift in federal trademark strategy for brand owners. Now, there is a single base application fee for new filings plus surcharge fees for incomplete filings or custom identifications of goods and services (“Base+”). In addition, the USPTO is implementing surcharges for “free-form text box” identifications of goods and services. The new fee structure means brand owners must recalibrate their filing budgets. For example, where previously TEAS Plus and TEAS Standard had fixed fees, the Base+ surcharge structure means the effective cost may vary significantly depending on the complexity of the application. Companies should evaluate whether custom identifications or “free-form text” entries are truly necessary, and whether multiple class filings carry disproportionate surcharges. Because surcharges apply for lengthy or free-form descriptions of goods and services, applicants should consider whether streamlined, standardized identifications would suffice. It goes without saying that overly broad or excessively verbose descriptions will likely trigger higher fees. Moreover, in view of the updated guidance on identification and classification, careful drafting can reduce risk of office action refusals or delays.

With fee changes in place, maintaining registrations and avoiding abandonment will require enhanced vigilance. Brand owners should review renewal schedules, monitor for inadvertent abandonment, and manage assignments and recordations proactively. At a minimum, brand owners should conduct a review of upcoming trademark filing plans and revise budgets to reflect the Base+ surcharge model.  Companies should also collaborate with brand and product teams to assess whether descriptions of goods and services can be streamlined in order to avoid surcharges. In addition, brand owners must build a filing calendar that is connected to product and marketing launch timelines in order to ensure that registration aligns with commercial rollouts. It is crucial that brand owners educate marketing stakeholders on the implications of the updated regime including the potential cost of delayed filings and surcharges.

In addition to the changes to fee structures, timelines for pendency of applications are also in a state of flux.  First action pendency (i.e. the difference between the first action date and the filing date of a trademark application) measures the average number of months from the date of application filing to the examining attorney's first office action. The target for the current fiscal year is 6.7 months from filing. During the review process, the examining attorney conducts a review of the application to determine whether federal law permits registration. Thereafter, the first office action from an examiner provides an early indication of the issues that need to be addressed in order for the examining attorney to approve the application for publication in the Official Gazette or an indication that the application will be refused registration on legal or procedural grounds. Total pendency (i.e. the difference between the disposal date and the filing date) measures the average number of months from the date of filing to notice of allowance for intent to use and/or registration for applications based on actual use. The target for the current fiscal year is 13 months.  Brand owners need to plan accordingly.

In addition to the revised fee structures and pendency timelines, the USPTO is also trying to improve upon the current quality of the examination process. Review, analysis, and evaluation of this process is intended to improve the quality of an examiner’s decision making from their first to their final office actions. Among other things, the USPTO is looking to improve upon the quality of the substantive basis for decision making, search strategy, evidence, and writing in first office actions at the examiner level. The goal is to make marked improvements and reduce the number of errors committed during the examination process.  In the meantime, however, applicants can still expect that office actions will continue to be less than perfect.

In light of all of the aforementioned, brand owners must respond proactively to avoid surprises, protect commercial rights and optimize portfolio value. With early planning and thoughtful strategy, companies can turn the fee-adjustments, pendency process, and quality of review by examining attorneys into an opportunity for portfolio optimization and strengthened brand protection.