T.M.E.P. § 903.02
Date of First Use in Commerce

Executive summary:

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903.02 Date of First Use in Commerce

The date of first use in commerce is the date when the goods were first sold or transported, or the services first rendered, under the mark in a type of commerce that may be lawfully regulated by Congress, if such use is bona fide and in the ordinary course of trade. See TMEP §901.01 for definitions of "commerce" and "use in commerce," and TMEP §903.03 regarding types of commerce.

A date of first use in commerce is not required to receive a filing date in an application based on use in commerce under §1(a) of the Act. If the application does not include a date of first use in commerce, the examining attorney will require that the applicant state the date of first use in commerce, supported by an affidavit or declaration under 37 C.F.R. 2.20. 37 C.F.R. §§2.34(a)(1)(iii) and 2.71(c).

In a §1(a) application, the applicant may not specify a date of use that is later than the filing date of the application. If an applicant who filed under §1(a) did not use the mark in commerce before the application filing date, the applicant may amend the basis to §1(b). See TMEP §§806.03 et seq. regarding amendments to the basis.

An applicant may not file an application on the basis of use of a mark in commerce if such use has been discontinued.