Tags: employees, minimum wage, non-tipped, tipped, wage act, wage and hour
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On June 26, 2014, Governor Deval Patrick signed a bill into law which will raise the hourly minimum wage in Massachusetts for the first time since 2008. As a result of these increases, Massachusetts’ minimum wage will be amongst the highest in the country. Employers who fail to comply with the minimum wage increase will be in violation of the Massachusetts “Payment of Wages” statute and be subject to mandatory treble (triple) damages, attorney’s fees, and possible criminal penalties.
To learn how and when the minimum wage will change, or why you should comply, please see our full Wage & Hour Tip of the Month.
Please feel free to contact MBBP’s Employment Law Group with any questions.
Tags: biological products, biosimilar, FDA, pharmacist, vaccines, viruses
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By: Stanley Chalvire
Massachusetts recently enacted Chapter 143 of the Acts of 2014, entitled “An Act relative to the substitution of interchangeable biosimilars,” authorizing pharmacists to fill prescriptions that are written for brand name biological products with the corresponding and generally less expensive biosimilar product. A biosimilar is a biological medicine that the U.S. Food and Drug Administration (FDA) has determined is highly similar to an FDA-approved biological product, notwithstanding minor differences in inactive components, for which there are no clinically meaningful differences between such biosimilar product and the reference biological product in terms of safety, purity and potency.
The Act defines “biological product” to include, for example, viruses, vaccines, blood components or derivatives and certain proteins that are applicable to the prevention, treatment or cure of a disease or condition of human beings. An “interchangeable prescription biological product” is defined as a biosimilar that has been determined by the FDA to be substitutable with the prescribed reference biological product.
The Act generally tracks existing Massachusetts laws governing the substitution of generic drugs for prescribed brand name drugs. In particular, the Act provides that:
- A pharmacist filling a prescription for a biological product prescribed by its trade or brand name may substitute an interchangeable biological product;
- The prescriber can instruct against substitution of an interchangeable biological product on a patient-specific basis;
- The dispensing pharmacist or the pharmacist’s designee must notify the prescribing practitioner and the patient of the substitution;
- The dispensing pharmacist or the pharmacist’s designee, the prescribing provider and administering practitioner shall retain a record of each substitution, for not less than 1 year from the date of the last entry in the profile record; and
- In the event of noncompliance by a pharmacist or a practitioner, the purchaser or patient may inform the director of consumer affairs and business regulation of such noncompliance.
The FDA has yet to approve a biosimilar product, much less an interchangeable biosimilar product which pharmacists in Massachusetts would be permitted to substitute under the Act. Massachusetts now joins Florida, North Dakota, Oregon, Utah, Virginia and Indiana on the forefront of states enacting laws governing the substitution of biosimilars.
For more information on the Act or biosimilars, please contact Stan Chalvire.
Upcoming Seminars in Waltham & Cambridge! 07/16/2014Posted by Morse, Barnes-Brown Pendleton in Corporate, Employment, Events, Intellectual Property, Legal Developments, MBBP news, Privacy and Data Security.
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The end of Summer and beginning of Fall are the perfect time to get back into the swing of things! Join us for timely, informative seminars on False Advertising, Sweepstakes & Contests, and Employment Law. Get the details below.
LIMITED SEATING – REGISTER TODAY!
8/12/14 – Unfair Competition / False Advertising: How the Supreme Court’s recent decisions impact false advertising claims against competitors. (Waltham, MA) - In this seminar, we will discuss unfair competition and false advertising under the Lanham Act, the Lexmark International, Inc. v. Static Control Components, Inc.and POM Wonderful LLC v. Coca-Cola Co. decisions, and how these decisions may affect your rights against third parties. Complimentary seminar!
9/18/14 – Playing a Game of Chance: Understanding the Differences Between Sweepstakes, Contests and Illegal Lotteries. (Cambridge, MA) - Sweepstakes and contests are a great way to promote your business. However, there is a fine line between conducting legal sweepstakes or contests and conducting an illegal lottery. In this seminar, we will discuss what constitutes an illegal lottery, ways to structure contests / sweepstakes to comply with federal & state laws, state registration requirements and penalties for conducting an illegal lottery. Complimentary seminar!
10/17/14 – The Morse Course: Employment Law Compliance & Risk Prevention for Managers, Supervisors and HR Professionals. (Waltham, MA) - Learn practical information and valuable strategies for avoiding the many traps that lead to expensive and time-consuming HR problems and employment litigation. Group discount available!
SEC Chair Speaks on Corporate Governance 07/10/2014Posted by Morse, Barnes-Brown Pendleton in Public Companies.
Tags: advisory, attitudinal, corporate governance, directors, gatekeepers, SEC, self-reporting
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By: Mark Tarallo
On June 23, 2014, SEC Chair Mary Jo White spoke to the Twentieth Annual Stanford Directors’ College held at the Stanford University Rock Center for Corporate Governance. Chair White’s remarks focused on the SEC’s view of the role of the board of directors in a corporation.
Chair White characterized her remarks as covering three topics-one attitudinal, one advisory, and one descriptive. The “attitudinal” topic was the view that the SEC takes regarding directors as the most important “gatekeepers” of a corporation. She noted that “it is essential for directors to establish expectations for senior management and the company as a whole, and exercise appropriate oversight to ensure that those expectations are met. It is up to directors, along with senior management under the purview of the board, to set the all-important “tone at the top” for the entire company.” From an advisory perspective, Chair White spoke to the obligation of the board to engage in self-reporting when they learn of any wrongdoing and working cooperatively with regulators. She referred to prior decisions and press releases to show how self-reporting and cooperation is viewed favorably by the SEC, and called on directors to “[m]ake it clear from the outset that the board’s expectation is that any internal investigation will search for misconduct wherever and however high up it occurred; that the company will act promptly and report real-time to the Enforcement staff on any misconduct uncovered; and that the company will hold its responsible employees to account.” Last, Chair White described the workings of the SEC’s Whistleblower program and why it is necessary for the board to take any tips or accusations seriously. It is clear from her remarks that the SEC plans to hold boards accountable for compliance failures, and while her remarks were targeted at public reporting companies, they are instructive for private companies as well, and directors of private companies should take note of the increasing obligations to ensure compliance.
A full copy of the text of Chair White’s comments can be found here.
Please feel free to contact Mark with any questions on this topic.
Tags: british open, clorox, dean foods, garelick farms, insider trading, land o lakes, non-public information, phil mickelson, publicly-traded
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By: Joseph Marrow
As Phil Mickelson prepares to play in the upcoming British Open, he faces additional insider trading allegations (there were previous reports that Mickelson profited from trades involving Clorox, but that investigation allegedly ended without any action). Most recently, federal authorities subpoenaed Dean Foods (Land O Lakes, Garelick Farms and TruMoo brands), a publicly-traded company, about trading activity that closely preceded the announcement of a subsidiary spinoff. Prior to the spinoff, Mickelson and William Walters, a sports gambler and friend of the golfer, placed trades in the shares of Dean Foods. Allegedly, Walters made $15 million in profit and Mickelson made $1 million in profit from the trades. According to reports, the investigation has focused on whether someone inside Dean Foods tipped Walters with material non-public information regarding the proposed spinoff and whether Walters then informed Mickelson.
Insider trading refers to the practice of profiting from the buying and selling of stock in publicly-traded companies through the use of non-public information. In addition, an individual can trip up the insider trading rules by being the “tippee” (recipient) of inside information from a “tipper” (person with access to the inside information). This is the situation purportedly facing Mickelson. Proving insider trading can be very challenging for prosecutors. There has been a noticeable increase in the investigation and prosecution of insider trading cases. Targeting a high profile person like Mickelson may bring more attention to insider trading claims and may serve as a deterrent to individuals considering trading on material non-public information.
For more information on this topic, please feel free to contact Joe.
Tags: bbj, bluebird bio, boston business, cynosure, demandware, fastest growing, Implant Sciences, nuance, public companies
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Last month, the Boston Business Journal (BBJ) published its print edition containing a list of the Top 50 Fastest-Growing Public Companies in Massachusetts. Five MBBP clients were selected and ranked on this list according to each company’s two-year revenue growth as of their most recent fiscal year:
- bluebird bio, Inc.
- Cynosure, Inc.
- Demandware, Inc.
- Implant Sciences Corp.
- Nuance Communications, Inc.
Congratulations to all of our clients!
The full list of the Fastest-Growing Public Companies in Massachusetts is available to subscribers via the Boston Business Journal’s digital edition here.
Tags: cyber-crime, cybersecurity, NIST, nyse, public sector, SEC
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By: Mark Tarallo
On June 10, 2014, Commissioner Luis A. Aguilar of the United States Securities and Exchange Commission spoke at the New York Stock Exchange as part of the “Cyber Risks and the Boardroom” Conference. As Commissioner Aguilar noted, “[c]ybersecurity has become an important topic in both the private and public sectors, and for good reason. … Indeed, according to one survey, U.S. companies experienced a 42% increase between 2011 and 2012 in the number of successful cyber-attacks they experienced per week.” Commissioner Aguilar indicated that not only are attacks becoming more frequent, they are becoming more expensive, citing one survey that showed that the average annualized cost of cyber-crime to a sample of U.S. companies was $11.6 million per year, representing a 78% increase since 2009. Commissioner Aguilar concluded his remarks by stating quite clearly that boards of directors bear an increasingly heavy burden when dealing with cybersecurity, as “board oversight of cyber-risk management is critical to ensuring that companies are taking adequate steps to prevent, and prepare for, the harms that can result from such attacks.” Commissioner Aguilar laid out several steps for proactive boards to engage in, including working with management to ensure that corporate policies match up with NIST Cybersecurity Framework guidelines, creating an enterprise risk committee on the board to make sure that members are adequately educated, and preparing in advance for the “inevitable” cyber attack. Given the SEC’s recent enhanced focus on cybersecurity issues, Commissioner Aguilar’s remarks send a clear message to directors to embrace the responsibility of addressing cyber risk and adequately preparing for attacks.
The complete transcript of Commissioner Aguilar’s remarks can be found here.
Tags: aereo tv, copyright, streaming, supreme court, transmit clause
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By: Sheri Mason
On June 25, 2014, the U.S. Supreme Court ruled that Aereo, Inc.’s T.V. streaming services violate U.S. copyright law, reversing the Second Circuit’s decision that held that Aereo’s system (which consists of tiny antennas housed in a centralized location) “amounted to nothing more than a cloud-computing version of old fashion rabbit ears – a private transmission within the home.”
In a decision written by Justice Breyer, the Court reasoned that Aereo’s system does not provide a “private performance” similar to an off-site digital video recorder, but rather provides a “public performance” within the meaning of the Copyright Act’s “Transmit Clause” in violation of the major television networks’ copyrighted works. To reach this decision the Court determined, first, that Aereo “performs” broadcast works because it allows its paid subscribers to watch T.V. programs at virtually the same time they are being broadcast, like CATV companies. Second, the Court determined that Aereo transmits these works to “the public” because it communicates its transmissions “to a large number of people who are unrelated and unknown to each other.”
While there is concern that this ruling may impose copyright liability on other cloud-based technologies, the Supreme Court made clear that its ruling only applies to Aereo’s system and that Congress “did not intend to discourage or control the emergence or use of different kinds of technologies.” Whether or not providers of other technologies violate the Transmit Clause – or other provisions of the Copyright Act – will need to be determined on a case-by-case basis.
The full opinion can be found here.
For more information on copyright law, please feel free to contact Sheri.
Tags: business judgment rule, controlling stockholder, DE court, kahn v. Lynch, M&A Today, materiality scrape, mergers, shareholders
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In MBBP’s June issue of M&A Today, Scott Bleier provides insight into “Materiality Scrape” Provisions from both the Buyer and Seller perspective in merger and acquisition agreements, while Mark Tarallo discusses the business judgment ruling and how it benefits the defendants while providing a clear roadmap for controlling stockholders.
Read the June M&A Today here.
Still a Smaller Reporting Company? 06/25/2014Posted by Morse, Barnes-Brown Pendleton in Public Companies.
Tags: audited financial statements, common stock, compensation, determination date, MD&A, public float, SRC, SRC status
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Did you know that once a year smaller reporting companies (“SRCs”) are required to determine whether they continue to qualify as an SRC? For most companies the determination date is June 30 – the last business day of the company’s second fiscal quarter. To continue to qualify as an SRC, a company’s public float on the determination date must be less than $75M. Public float is calculated by multiplying the number of shares of common stock held by non-affiliates by the closing price (or average bid and ask price) on the determination date.
What changes if a company loses SRC status? If a company’s public float exceeds $75M as of the determination date it no longer qualifies as an SRC and must transition to the disclosure requirements applicable to larger companies. Some of the most significant changes include:
Timing? To assist with the transition in status, the SEC allows companies until the first quarter of the next fiscal year to begin to comply with the heighted disclosure requirements.
May a non-SRC qualify as an SRC? It is also possible for a non-SRC to transition to SRC status. This determination is also made as of the last business day of the second fiscal quarter. For a non-SRC to qualify as an SRC its public float must be less than $50M (or if the company has no public float, must have annual revenue in the last completed fiscal year of less than $40M). A new SRC may start taking advantage of the scaled disclosure requirements immediately.
For more information on this topic or assistance in determining whether your company qualifies as an SRC please contact Daniele Levy.
Tags: bridgewater-raynham, coffee pods, EurekaFest, innovation, inventeam, invention, lemelson-mit, MIT, STEM education
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By: Tracey Brenner
Lemelson-MIT hosted its eighth-annual EurekaFest June 20-21st, a celebration designed to empower the next generation of inventors by inspiring youth, honoring role models, and encouraging creativity and problem solving. Each EurekaFest Team, comprising high school students, educators and mentors, received up to $10,000 from the Lemelson-MIT Program to invent technological solutions to real-world problems of their own choosing.
Sixteen Teams, parsed into groups of four, presented their “pitch” to peers, teachers, and media in classrooms across the Stata Center at MIT the morning of June 20th. The young students, the most senior of which are now rising college freshmen, each handled themselves with youthful poise, enthusiasm, and eloquence. Teams actively displayed a product prototype during the presentation. Prototypes included, from Benjamin Banneker Academic High School in Washington D.C., a safety device that attaches to a door to prevent it from opening in an emergency situation; from Elkin’s High School in Missouri Texas, an automated disinfectant system for high-end 3D movie glasses; and from the School of Dreams Academy in Los Lunas, New Mexico, a system for detecting and alerting parked police officers of impending physical dangers.
In addition to displaying prototypes, Teams also described the need based/market-driven iterative ideation and development process in which they engaged, and touched on some of the ways they executed key to-market strategies. For example, students described building a well-balanced founding team, raising supplemental funds, securing support from the community/stakeholders, and, in some cases, conducting patentability studies and pursuing intellectual property protection. Students also answered a plethora of eager questions from and offered tips and advice to their peers.
This Lemelson-MIT Program is an example of collaborative cross-disciplinary STEM education reaching to its highest heights. May it incite and inspire educator and entrepreneur alike.
MBBP client Bridgewater-Raynham Regional Highschool’s InvenTeam was one of the 16 high schools nationwide to be selected for a $9,200 grant out of 250 applicants. Through this grant, the BR team has invented a device that separates and stores the materials of single-serve coffee pods allowing proper recycling and composting.
Congratulations Bridgewater Raynham InvenTeam!
Tags: financial accounting, IFRS, JOBS Act, mary jo white, SEC
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By: Mark Tarallo
On May 20, 2014 U.S. Securities and Exchange Commission Chair Mary Jo White spoke at the Financial Accounting Foundation Trustees Dinner. Given the audience, it is not surprising that her remarks focused on accounting issues at the SEC. In her remarks, Chair White mentioned that the SEC is still considering the addition of International Financial Reporting Standards (“IFRS”) for domestic registrants. Although no timetable was given for when the issue would be addressed, White noted that the interests of U.S. investors would be front and center during the IFRS consideration process. In addition, Chair White commented on the continuing efforts of the Disclosure Effectiveness Project, noting that she has directed the staff to undertake a comprehensive review of disclosure requirements under Regulation S-K and make specific recommendations for updating the requirements pursuant to a JOBS Act-mandated report on Regulation S-K that provides the staff’s recommendations for a review of corporate disclosure requirements. She also noted that the Financial Reporting and Audit Task Force, formed in July, 2013, will continue its increased enforcement efforts and will work to look ahead to identify additional areas where financial reporting fraud may be likely to occur, while focusing on internal controls related to the areas that have already been identified as being susceptible to financial reporting fraud.
The complete transcript of Chair White’s remarks is available here.
Tags: native americans, petition, pro football, trademark, trial and appeal board, USPTO, washington redskins
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By: Sheri Mason
The Trademark Trial and Appeal Board issued a decision today cancelling six of the Washington Redskins’ registered trademarks, finding that the marks disparage Native Americans. In 2006, five Native Americans filed a petition to cancel the marks, which were registered between 1967 and 1990, on the grounds that the marks disparage Native Americans. The T.T.A.B. agreed, finding that the marks were disparaging to Native Americans at the time the marks were registered.
If Pro Football, Inc. decides to appeal the decision, the T.T.A.B. will suspend cancellation of the registrations pending a decision by the court, which may take years. If they do not appeal, the registrations will be cancelled at that point.
What does this mean for the Washington Redskins? While the T.T.A.B. has authority to cancel the registrations of the marks, it does not have the authority to issue a ruling concerning the use of the marks. Therefore, even if Pro Football, Inc. does not appeal and the registrations are cancelled, the T.T.A.B.’s decision does not prevent the Pro Football, Inc. from continuing to use the Washington Redskins mark as the name of its professional football team. This decision also does not mean that third parties may use the marks once the registrations are cancelled; Pro Football has well-established common law rights to the marks and can still prevent third-party use.
The full opinion can be found here.
For more information on trademarks, please feel free to contact Sheri.
Tags: discrimination, employment law, retaliation claims
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Retaliation is now the most common type of discrimination alleged nationally, topping both race and gender. What are retaliation claims and what steps can employers take to reduce their risks? Check out our most recent Employment Law Clip to learn more:
Please feel free to contact any member of our Employment Law Group with any questions on retaliation claims.
Tags: federal, priority, protection, trademark registration, USPTO
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Trademark registration is not required in the United States, however, owning a federal trademark registration enhances rights in a mark. Here are the top ten reasons why you should register your mark with the United States Patent and Trademark Office:
- Prevention: Registering your mark can prevent potential conflicts from arising. Prospective applicants or their counsel often search the USPTO’s free online trademark registry to determine whether a proposed mark is available. Prospective applicants who encounter your mark might be deterred some from filing a mark that conflicts with yours.
- Priority (U.S.): Upon registration, the filing affords you nationwide priority over all others who filed after you, except: (1) parties who used the mark before your filing date; and (2) parties who are entitled to an earlier priority filing date based on a foreign application.
- Priority (Foreign): You have six months from your U.S. filing date within which to file in many foreign jurisdictions and claim as a priority filing date the date of your first-filed application in the U.S. for the same mark for use with the same goods and/or services. For example, if you apply in the U.S. on May 15, you may apply for the same mark for use with the same goods and/or services in China up to November 15 and claim a priority filing date in China of May 15. Your application in China will take priority over all others who filed in China during those six months.
- Presumption: Once on file, it is presumed your rights extend throughout the United States and its Territories. Nationwide presumptive rights, as contrasted with geographic limitations inherent in unregistered marks, can be critically important in avoiding confusion in domestic markets in which you currently operate and into which you intend to expand.
- Protection: Registering your mark protects against the registration of a third party’s confusingly similar mark for related goods and/or services by leveraging resources of the USPTO, which is charged with refusing registration of marks that conflict with prior pending and registered marks.
- Presentation: Registration affords you the right to use the ® symbol when displaying your mark. Use of the ® symbol communicates to your current and prospective clients you are serious about protecting your intellectual property rights. Use of the ® symbol is required at the time an enforcement action arises in order to recover profits and damages in federal court.
- Property: Your Certificate of Registration constitutes prima facie evidence of your exclusive ownership of the mark for use with the goods and/or services identified in the registration. After five years of continuous use your property right becomes “incontestable” by operation of law and can no longer be challenged by any third party claiming your mark is likely to cause or is causing confusion with their mark.
- Plaintiff: Federal trademark registration grants you the right to sue for trademark infringement under federal law. Other claims might be available depending on the facts, such as unfair competition, false advertisement, etc., but Section 32 of the Trademark Act, which governs infringement claims, expressly provides for relief to “the registrant” only.
- Profits: When a violation of any right of the registrant of a mark registered in the USPTO is established in a civil action, the registrant may recover certain statutory damages, including defendant’s profits. If you do not register your mark, you cannot recover lost profits.
- Ports: You may record your federal trademark registration with U.S. Customs and Border Protection to block imports that infringe your mark or are counterfeits of your goods.
For more information on trademark registration and other trademark topics, please contact Tom Dunn.
Tags: mary beth kerrigan, Showa Boston, the business coalition
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The Business Coalition (TBC) and the Showa Boston Institute for Language and Culture are uniting to host a panel discussion entitled “Shattering the Bamboo Ceiling” on June 12th. MBBP Corporate Attorney Mary Beth Kerrigan will sit as one of five panelists, all Boston-area women of distinction, who will discuss their personal journeys of where they are today in their work life. The event will be simulcast to students located at Showa Tokyo on Friday morning as well.
To learn more about the event, please visit The Business Coalition.
Tags: acquired, entrepreneurs, investors, IPO, Life Sciences, m&a, technology, TiECON East
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TiECON East, the largest startup conference on the East Coast, is being held at the Cambridge Marriott on May 29th-30th. Entrepreneurs from technology, life sciences, education and cleantech industries attend the two-day conference to learn about the latest trends in innovation, get advice from experienced entrepreneurs, and network to find their next big opportunity. On Friday, May 30th MBBP Attorney Shannon Zollo will be moderating a panel titled “M&A or IPO, That’s the Question” in which distinguished experts will help answer questions such as:
- How early is too early to start thinking about the Exit?
- What are the important factors to consider for an exit event, whether IPO or M&A?
- What steps do you need to take today to ensure the best return for yourself and your investors?
- Does the type of investor you seek matter?
To learn more about the panel, visit TiECON East.
For more information on the specifics regarding M&A transaction or IPOs please feel free to contact Shannon Zollo.
USPTO Proposes Reducing Fees for Trademark Applications and Renewals Filed Electronically 05/20/2014Posted by Morse, Barnes-Brown Pendleton in Intellectual Property.
Tags: renewals, TEAS, trademark applications, USPTO
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By: Thomas Dunn
The USPTO has issued a notice of proposed rulemaking relating to the reduction of fees for trademark applications and trademark renewals filed electronically.
Currently the per-class fees for filing an application for registration of a trademark are set at $375 for filing a paper application, $325 for filing electronically using the regular Trademark Electronic Application System (TEAS) form, and $275 for filing electronically using TEAS Plus form, which involves additional requirements. The per-class fee for renewal of a trademark registration is currently $400.
The USPTO proposes to reduce by $50 the fee for an application filed using the regular TEAS application form from $325 to $275 per class if the applicant authorizes email communication and agrees to file all responses and other documents electronically during the prosecution of the application. This option will be known as a TEAS Reduced Fee (‘‘TEAS RF’’) application. The USPTO also proposes to reduce by $50 the fee for a TEAS Plus application for registration from $275 to $225 per class and reduce by $100 the fee for a TEAS application for renewal of a registration from $400 to $300 per class.
The filing fee of $375 per class for trademark applications filed on paper will not be changed. The filing fee of $400 per class for renewal of a trademark registration filed on paper will likewise not be changed.
The full notice is available here. The comment period closes on June 23, 2014. We expect the reduced fee structure will be implemented shortly thereafter.
Trademark attorneys at Morse, Barnes-Brown and Pendleton file every application and renewal electronically, authorize email communication with the USPTO, and file all responses and other documents electronically during the prosecution of an application. By meeting these requirements, we are positioned to help reduce filing costs for our clients. We invite you to talk with us about how we can meet your trademark needs in a cost-efficient manner.