0651-0048-Just-final

SUPPORTING STATEMENT
United States Patent and Trademark Office
Native American Tribal Insignia Database
OMB CONTROL NUMBER 0651-0048

A.

JUSTIFICATION

1.

Necessity of Information Collection

The Trademark Law Treaty Implementation Act (Pub. L. 105-330, ' 302, 112 Stat. 3071
(1998)) required the United States Patent and Trademark Office (USPTO) to study issues
surrounding the protection of the official insignia of federally- and state-recognized Native
American tribes under trademark law. The USPTO conducted the study and presented a
report to the House and Senate Judiciary Committees on November 30, 1999.
One of the recommendations made in the report was that the USPTO create and maintain
an accurate and comprehensive database containing the official insignia of all federallyand state-recognized Native American tribes. In accordance with this recommendation, the
Senate Committee on Appropriations directed the USPTO to create this database. The
USPTO published the final procedures for establishing and maintaining the tribal insignia
database in the Federal Register on August 24, 2001 (66 Fed. Reg. 44603).
The USPTO database of official tribal insignias assists trademark attorneys in their
examination of applications for trademark registration. Additionally, the database provides
evidence of what a federally- or state-recognized Native American tribe considers to be its
official insignia. The database serves as a reference for examining attorneys when
determining the registrability of a mark that may falsely suggest a connection to the official
insignia of a Native American tribe. The database is also available to the public on the
USPTO web site.
Tribes are not required to request that their official insignia be included in the database.
The entry of an official insignia into the database does not confer any rights to the tribe that
submitted the insignia, and entry is not the legal equivalent of registering the insignia as a
trademark under 15 U.S.C. § 1051 et seq. The inclusion of an official tribal insignia in the
database does not create any legal presumption of validity or priority, does not carry any of
the benefits of federal trademark registration, and is not a determination as to whether a
particular insignia would be refused registration as a trademark pursuant to 15 U.S.C. §
1051 et seq.
Requests from federally-recognized tribes to enter an official insignia into the database
must be submitted in writing and include: (1) a depiction of the insignia, including the name
of the tribe and the address for correspondence; (2) a copy of the tribal resolution adopting
the insignia in question as the official insignia of the tribe; and (3) a statement, signed by an
official with authority to bind the tribe, confirming that the insignia included with the request
is identical to the official insignia adopted by the tribal resolution.

Requests from state-recognized tribes must also be in writing and include each of the three
items described above that are submitted by federally-recognized tribes. Additionally,
requests from state-recognized tribes must include either: (a) a document issued by a state
official that evidences the state's determination that the entity is a Native American tribe; or
(b) a citation to a state statute designating the entity as a Native American tribe.
The USPTO enters insignia that have been properly submitted by federally- or staterecognized Native American tribes into the database and does not investigate whether the
insignia is actually the official insignia of the tribe making the request.
This collection includes the information needed by the USPTO to enter an official insignia
for a federally- or state-recognized Native American tribe into a database of such insignia.
No forms are associated with this collection.
2.

Needs and Uses

The database of official insignia of Native American tribes is included within the USPTO’s
database of material that is not registered but is searched to determine the registrability of
marks. Inclusion of official insignia in this database will ensure that an examining attorney
will consider these insignia before making a final determination of the registrability of a
mark that may be similar. The insignia database is available to the public on the USPTO
web site.
The Information Quality Guidelines from Section 515 of Public Law 106-554, Treasury and
General Government Appropriations Act for Fiscal Year 2001, apply to this information
collection and comply with all applicable information quality guidelines, i.e. OMB and
specific operating unit guidelines.
This proposed collection of information will result in information that will be collected,
maintained, and used in a way consistent with all applicable OMB and USPTO Information
Quality Guidelines.
Table 1 outlines how this collection of information for the tribal insignia database is used by
the public and the USPTO:

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Table 1: Needs and Uses of Information Collected for the Native American Tribal Insignia Database
Information and Function
Request to Record an Official Native American
Tribal Insignia of a Federally-Recognized Tribe,
including:
C Depiction of the insignia.
C Copy of the tribal resolution adopting the
insignia as the official insignia of the tribe.
C Statement confirming that the insignia is
identical to the official insignia adopted by
tribal resolution.

Form #

Needs and Uses
C

No Form
Associated

C

C
C

Request to Record an Official Native American
Tribal Insignia of a State-Recognized Tribe,
including:
C Depiction of the insignia.
C Copy of the tribal resolution adopting the
insignia as the official insignia of the tribe.
C Statement confirming that the insignia is
identical to the official insignia adopted by
tribal resolution.
C Document issued by a state official that
evidences the state=s determination that the
entity is a Native American tribe or a citation
to a state statute that designates the entity
as a Native American tribe.

3.

C

No Form
Associated

C

C
C

Used by the tribal government to request entry of their
official insignia into the USPTO database of official tribal
insignias.
Used by the USPTO to determine whether a trademark
for which registration is sought may falsely suggest a
connection to an official insignia of a Native American
tribe.
Used by the USPTO as evidence of what a Native
American tribe considers to be its official insignia and its
official address for correspondence.
Used by the USPTO to maintain a public search
database.
Used by the tribal government to request entry of their
official insignia into the USPTO database of official tribal
insignias.
Used by the USPTO to determine whether a trademark
for which registration is sought may falsely suggest a
connection to an official insignia of a Native American
tribe.
Used by the USPTO as evidence of what a Native
American tribe considers to be its official insignia and its
official address for correspondence.
Used by the USPTO to maintain a public search
database.

Use of Information Technology

The USPTO accepts submissions for the Native American tribal insignia database by mail
or facsimile. The USPTO does not use automated, electronic, mechanical, or other
technologies to collect these submissions.
However, the USPTO does use information technology to process these submissions.
When the USPTO receives a request to record an official insignia for a Native American
tribe, the image of the insignia, the tribe=s name, and the correspondence address are
electronically captured by a system that allows for the creation of flat files of textual data
while also supporting the display of stored images. The images and associated information
are either scanned or manually keyed into the system.
The data stored in this database is used to populate the automated trademark search
system (X-Search), into which the database of tribal insignia is entered. This system uses
sophisticated search functions to search the text and image data.
The USPTO also utilizes information technology by posting the insignia database on its
web site. However, the USPTO currently does not plan on collecting this information
electronically. The expected number of submissions is relatively small, and each
submission includes only a small number of data elements. Therefore, the USPTO
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believes that the development of an electronic form to collect the insignia information is
impractical and not cost effective at this time.
4.

Efforts to Identify Duplication

This information is collected only when a Native American tribe submits an official insignia
to be entered into the USPTO database. It is not collected elsewhere and does not result
in a duplication of effort.
5.

Minimizing Burden

This collection does impact small entities, since the respondents are tribal governments.
However, the USPTO does not believe that this collection will have a significant economic
impact on small entities. The same information is required from every respondent, and this
information is not available from any other source.
6.

Consequences of Less Frequent Collection

This information is collected only when a Native American tribe submits its official insignia
for inclusion in the database of Native American tribal insignia. These submissions could
not be collected less frequently. If the collection of information were not conducted, the
USPTO could not comply with the Congressional directive to create a database containing
the official insignia of federally- and state-recognized Native American tribes.
7.

Special Circumstances in the Conduct of Information Collection

There are no special circumstances associated with this information collection.
8.

Consultations Outside the Agency

The 60-Day Notice was published in the Federal Register on October 12, 2007 (72 Fed.
Reg. 58060). The comment period ended on December 11, 2007. Two comments were
received from the public. Both comments indicated that the estimated time for the public to
submit a request to record an official tribal insignia was not sufficient. The USPTO will look
into the issue and will increase the time estimate if it finds that 10 minutes is inadequate for
most filers. The USPTO estimate is based on the filer having a copy of the tribal insignia
and the necessary authorizations when making the request to include the insignia in the
database.
One of the comments indicated that the usefulness of the database to tribes would be
greatly increased if the USPTO were obligated to provide written notice to the tribe in the
event a trademark application was received seeking to use all or a portion of a particular
tribal insignia included in the database. There is no provision in the Trademark Act to
provide such notice and it would place an unreasonable administrative burden on the
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USPTO to do so. Notice to potential opposers is provided by publication in the Official
Gazette, an online publication available through the USPTO website. Furthermore,
because the prosecution of a trademark application is an ex parte proceeding, the USPTO
does not discuss the merits of any particular application with a third party. (See TMEP
§1806.) Therefore, the requested notification to the tribes would violate the policy
prohibiting such communication with parties other than the applicant.
The USPTO has previously received input from several groups regarding the establishment
of this database, including Native American tribal governments, associations, corporations,
universities, trademark holders, and private citizens. Before the creation of the database,
the USPTO conducted a seven-month study to consider how to better protect the official
insignia of Native American tribes under trademark law. The USPTO also published
notices in the Federal Register requesting public comments and held public hearings.
Large and well-organized bar associations frequently communicate their views to the
USPTO. Also, the Trademark Public Advisory Committee (T-PAC) was created by the
American Inventors Protection Act of 1999 to advise the Director of the USPTO on the
agency=s operations, including its goals, performance, budget, and user fees. The T-PAC
has nine voting members who are appointed by and serve at the pleasure of the Secretary
of Commerce. The statute also provides non-voting membership on the Committee for the
agency=s three recognized unions. The appointments include inventors, lawyers, corporate
executives, entrepreneurs, and academicians with significant experience in management,
finance, science, technology, labor relations, and intellectual property issues. The
members of the T-PAC reflect the broad array of USPTO=s stakeholders and embrace the
USPTO=s e-government initiative. This diversity of interests is an effective tool in helping
the USPTO nurture and protect the intellectual property that is the underpinning of
America=s strong economy.
9.

Payment to Respondents

This information collection does not involve a payment or gift to any respondent.
10.

Assurance of Confidentiality

Confidentiality is not required in the processing of official insignias for the USPTO
database. The tribal insignia database is open to public inspection.
11.

Justification for Sensitive Questions

None of the required information in this collection is considered to be of a sensitive nature.

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12.

Estimate of Hour Burden

Table 2 calculates the burden hours and costs of this information collection to the public,
based on the following factors:
$

Respondent Calculation Factors
The USPTO estimates that approximately 15 responses will be received annually, 10 from
federally-recognized tribes and 5 from state-recognized tribes.

$

Burden Hour Calculation Factors
The USPTO estimates that a federally-recognized Native American tribe will require an average
of 10 minutes (0.17 hours) to complete a request to record an official insignia and that a staterecognized Native American tribe will require an average of 12 minutes (0.20 hours) to complete
a request to record an official insignia. These estimates include the time to prepare the
appropriate documents and submit the completed request.

$

Cost Burden Calculation Factors
The USPTO expects that the information in this collection will be prepared by both
paraprofessionals and clerical staff. The estimated rate of $53 per hour used in this submission
is an average of the paraprofessional rate of $90 per hour and the clerical rate of $15 per hour.

Table 2: Burden Hour/Burden Cost to Respondents for the Native American Tribal Insignia Database

Item

Responses
(yr)
(b)

Hours
(a)

Burden
(hrs/yr)
(c)
(a) x (b)

Rate
($/hr)
(d)

Total Cost
($/yr)
(e)
(c) x (d)

Request to Record an Official Insignia of a
Federally-Recognized Tribe

0.17

10

2

$53.00

$106.00

Request to Record an Official Insignia of a StateRecognized Tribe

0.20

5

1

$53.00

$53.00

Totals

.....

15

3

.....

$159.00

13.

Total Annualized Cost Burden

There are no capital start-up, maintenance, or recordkeeping costs associated with this
information collection. There are also no filing fees for submitting a tribal insignia for
recording. However, this collection does have annual (non-hour) costs in the form of
postage costs.
Customers may incur postage costs when submitting the information in this collection to the
USPTO by mail. The USPTO estimates that the average first-class postage cost for a
submission mailed through the U.S. Postal Service will be 92 cents and that up to 15
submissions will be mailed to the USPTO per year. The total estimated postage cost for
this collection is approximately $14 per year.

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The total annual (non-hour) cost burden for this collection in the form of postage
costs is $14 per year.
14.

Annual Cost to the Federal Government

The USPTO estimates that it takes a GS-12, step 2 employee approximately 10 minutes
(0.17 hours) to process a request to record an official insignia of a federally- or staterecognized Native American tribe in the USPTO database. The hourly rate for a GS-12,
step 2 is currently $33.06. When 30% is added to account for a fully-loaded hourly rate
(benefits and overhead), the hourly rate for a GS-12, step 2 is $33.06 + $9.92, for a rate of
$42.98.
Table 3 calculates the burden hours and costs of this information collection to the Federal
Government:
Table 3: Burden Hour/Cost to the Federal Government for the Native American Tribal Insignia
Database
Burden
(hrs/yr)
(c)
(a) x (b)

Total Cost
($/yr)
(e)
(c) x (d)

Hours
(a)

Responses
(yr)
(b)

Request to Record an Official Insignia of a
Federally-Recognized Tribe

0.17

10

2

$42.98

$86.00

Request to Record an Official Insignia of a StateRecognized Tribe

0.17

5

1

$42.98

$43.00

.....

15

3

.....

$129.00

Item

Totals

15.

Rate
($/hr)
(d)

Reason for Change in Burden

Summary of Changes Since the Previous Renewal
This information collection was previously approved by OMB in January 2005 with a total of
15 responses and 3 burden hours per year. For this renewal, the USPTO is maintaining
these burden estimates for annual responses and hours.
The total annual (non-hour) cost burden for this renewal of $14 is an increase of $7 from
the currently approved total of $7 in annual costs for this collection. This increase is due to
administrative adjustments.
Change in Respondent Cost Burden
When this collection was previously approved in January 2005, the estimated rate for the
public respondents to this collection was $48 per hour, which was an average of an
estimated paraprofessional rate of $81 per hour and an estimated clerical rate of $15 per
hour based on the level of effort being evenly split between paraprofessionals and clerical
7

staff. For this renewal, the USPTO still expects the level of effort to be evenly split between
paraprofessionals and clerical staff, but the updated paraprofessional rate of $90 per hour
and the clerical rate of $15 per hour yield an updated average rate of $53 per hour for
respondents, resulting in an increase in respondent cost burden from $144 to $159.
Changes in Responses and Burden Hours
For this renewal, the USPTO estimates that there will be no change in the total responses
and burden hours from the currently approved burden for this collection.
Changes in Annual (Non-hour) Costs
For this renewal, the USPTO estimates that the total annual (non-hour) costs will increase
by $7, from $7 to $14 per year. This increase is due to revising the estimated postage
costs for submitting the information in this collection to the USPTO by mail. Therefore,
this collection has an increase in annual (non-hour) cost burden of $7 due to an
administrative adjustment.
[Note: Due to the limitations of the legacy system that preceded ROCIS, annual cost
burdens were previously listed in the inventory as rounded to the nearest $1,000.
Therefore, the previously approved amount of $7 in annual costs for this collection was
listed as $0 in the current inventory, and this rounded figure was carried over when the
legacy data was migrated to ROCIS. Consequently, since the previously approved annual
costs are listed in the inventory as $0, the estimated increase to $14 for this submission
results in an apparent increase of $14 as displayed in ROCIS.]
16.

Project Schedule

The USPTO does not plan to publish this information for statistical use. The tribal insignia
database is available to the public on the USPTO web site.
17.

Display of Expiration Date of OMB Approval

There are no forms associated with this collection. Therefore, the display of the expiration
date is not applicable.
18.

Exceptions to the Certificate Statement

This collection of information does not include any exceptions to the certificate statement.

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B.

COLLECTION OF INFORMATION EMPLOYING STATISTICAL METHODS

This collection of information does not employ statistical methods.

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REFERENCES
A. Notice entitled “Establishment of a Database Containing the Official Insignia of
Federally and State Recognized Native American Tribes” published in the Federal
Register on August 24, 2001 (66 Fed. Reg. 44603)
B. The USPTO Information Quality Guidelines
C. 60-Day Notice published in the Federal Register on October 12, 2007 (72 Fed. Reg.
58060)
D. Comments received from the public on the 60-Day Notice

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