T.M.E.P. § 1102.03
Intent-to-Use Applications and the Supplemental Register

Executive summary:

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1102.03 Intent-to-Use Applications and the Supplemental Register

An applicant who relies on a bona fide intention to use the mark in commerce under §1(b) may not seek registration on the Supplemental Register until the applicant has submitted an amendment to allege use that meets the minimum filing requirements of 37 C.F.R. 2.76(e) or a statement of use that meets the minimum filing requirements of 37 C.F.R. 2.88(e). 37 C.F.R. §§2.47(d) and 2.75(b).

If an intent-to-use application requests registration on the Supplemental Register, the examining attorney will refuse registration under §23 of the Trademark Act, 15 U.S.C. 1091, on the ground that the mark is not in lawful use in commerce. If an application is based on intent-to-use in addition to another basis, registration of the entire application will be refused on the Supplemental Register unless the applicant either deletes the §1(b) basis or files a request to divide. See TMEP §§1110 et seq. regarding requests to divide. The examining attorney will withdraw the refusal if the applicant submits an acceptable allegation of use.

If an application is based solely on §1(b), and the applicant files an acceptable amendment to allege use or statement of use and an acceptable amendment to the Supplemental Register, the Office will consider the filing date of the amendment to allege use or statement of use to be the effective filing date of the application. 37 C.F.R. 2.75(b); TMEP §206.01. The examining attorney must conduct a new search of Office records for conflicting marks. In this situation, the Office does not alter the original filing date in its automated records. TMEP §206.

When the applicant files an allegation of use together with an amendment to the Supplemental Register, the examining attorney should examine the allegation of use before taking action on the amendment to the Supplemental Register.

See TMEP §§815 and 816 et seq. for additional information about the Supplemental Register.