T.M.E.P. § 901.04
Inquiry Regarding Use in Commerce

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.

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901.04 Inquiry Regarding Use in Commerce

It is the responsibility of the applicant and the applicant's attorney to determine whether an assertion of use in commerce is supported by the relevant factual situation. The validity of an applicant's assertion of use in commerce generally does not arise in ex parte examination. The examining attorney will normally accept the applicant's verified claim of use in commerce without investigation into whether the use referred to constitutes "use in commerce."

If, however, the application record contains evidence or information indicating that the mark may not be in use in commerce that "may lawfully be regulated by Congress," the examining attorney must ask the applicant whether there is use in commerce that may lawfully be regulated by Congress and require a satisfactory explanation or showing of such use.

When necessary, the examining attorney may also require additional product or sales literature concerning the use of the mark to permit full consideration of the issue. 37 C.F.R. 2.61(b); TMEP §814.