When a third party opposes an application, the Trademark Trial and Appeal Board institutes a proceeding and sets a date for the answer. It is forty days from institution.
Miss it and the Board can enter judgment by default — the application refused without the opposition ever being tested.
Where the date comes from
The institution order. Not the date the opposition was filed, not the date it was received at the firm. The order sets the schedule for the whole proceeding and the answer deadline is the first entry on it.
This is a different kind of deadline from the rest of a trademark docket. Office actions and maintenance filings are computed from register fields. An opposition answer exists only in the proceeding record — which is why systems that read only the trademark status will not see it at all.
Losing on procedure
An opposition is an adversarial proceeding, and most are settled or withdrawn rather than tried. A default judgment skips all of that. The applicant does not lose because the opposer was right; they lose because nobody answered.
Extensions of time to answer are routinely granted on consent, and opposers frequently agree to them while settlement is discussed. The deadline is manageable — it is simply unforgiving if it is not seen.
Forty days is less than it reads
Forty days from institution is roughly five and a half weeks, and a good part of it is usually gone before the file reaches the person who will handle it. The notice goes to the correspondence address of record. If the applicant filed pro se and later engaged counsel, or if the firm's correspondence address is a general inbox, the order can sit unread for a fortnight without anybody doing anything wrong.
In that time the answer has to be drafted, which means reading the notice of opposition, taking instructions, deciding whether to raise a counterclaim, and running a conflict check on the opposer. None of that is slow work, but none of it is same-day work either.
Extensions, and asking in time
The Board grants extensions of time to answer readily, and opposers consent to the first one as a matter of course — settlement discussions are the norm and both sides usually want the room. A consented motion filed before the deadline is close to automatic.
Filed after the deadline, it is a different motion. The applicant is then asking the Board to reopen a lapsed period, which requires showing excusable neglect rather than simply asking. The forty-day date is therefore not really the date the answer is due; it is the date by which a decision has to be made about whether to answer or to ask for more time.
Keeping it on the docket
Board deadlines sit outside the register, and that is the whole difficulty. A Section 8 window can be computed from the registration date by anyone with a calendar. An opposition answer deadline exists only in the proceeding file, which means a docket that is built from trademark status fields alone has a blind spot precisely where the consequence is a judgment.
Two habits close it. Watch the application status for a change into opposition rather than waiting for post, since the status moves when the proceeding is instituted. And docket the answer date off the institution order the day it is read, not off the date the opposition was filed — those differ, and the second one is not the deadline. See how the rest of the clocks are tracked.
What an answer has to do
- Respond to each numbered allegation — admit, deny, or state insufficient knowledge.
- Raise affirmative defences, which are generally waived if omitted.
- Consider any counterclaim, including to cancel the opposer's own registration.
A counterclaim to cancel is the one that changes the economics most often. An opposer relying on a registration that is itself vulnerable — for want of a Section 8, or through non-use — is in a different negotiation once that is raised.