T.M.E.P. § 1212.08
Section 44 and ¤66(a) Applications and Distinctiveness

Executive summary:

This document contains one section of the Trademark Manual of Examining Procedure (the "TMEP"), Fourth Edition (April 2005). This page was last updated in June 2007. You may return to one either the section index, or to the key word index. If you wish to search the TMEP, simply use the search box that appears on the bottom of every page of BitLaw--be sure to restrict your search to the TMEP in the pop-up list.

For more information on trademark law, please see the Trademark Section of BitLaw.

Previous Section (§1212.07) | Next Section (§1212.09)

1212.08 Section 44 and §66(a) Applications and Distinctiveness

In applications based on §44(d), §44(e), or §66(a) of the Trademark Act, registration may be sought under §2(f) on a showing that the mark has acquired distinctiveness in commerce that may lawfully be regulated by Congress. In re Etablissements Darty et Fils, 759 F.2d 15, 225 USPQ 652 (Fed. Cir. 1985). Dates of first use do not have to be stated in an application based solely on §44 or §66. However, reference to length of use or information as to specific dates of use will be important as part of the evidence presented in support of the claim of acquired distinctiveness.

The applicant may not rely on use other than use in commerce that may be regulated by the United States Congress in establishing acquired distinctiveness. Use solely in a foreign country is not evidence of acquired distinctiveness in the United States. In re Rogers, 53 USPQ2d 1741 (TTAB 1999).