T.M.E.P. § 903.03
Type of Commerce
Executive summary:
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903.03 Type of Commerce
Types of commerce that may be regulated by the United States Congress are interstate, territorial, and commerce between the United States and a foreign country. See TMEP §901.03.
An applicant is not required to specify the type of commerce in which the mark is used in an application based on §1(a) of the Act, or an amendment to allege use or statement of use in an application under §1(b). The Office presumes that an applicant who states that the mark is in use in commerce is stating that the mark is in use in a type of commerce that Congress can regulate, unless there is contradictory evidence in the record.
If the applicant's statement regarding use indicates use in a type of commerce that cannot be regulated by Congress (e.g., "intrastate commerce" or "foreign commerce"), the examining attorney must advise the applicant that it appears that the mark is not in use in a type of commerce that can be regulated by Congress and must require that the applicant either submit a verified statement that "the mark is in use in commerce that can be regulated by Congress," or amend the basis of the application to a bona fide intention to use the mark in commerce under §1(b) of the Act if permitted by 37 C.F.R. 2.35. See TMEP §806.03(c) regarding amendment of the basis from §1(a) to §1(b).
The term "foreign" is not acceptable to specify the type of commerce in which a mark is used, because it does not clearly indicate that the mark is in use in a type of commerce that Congress can lawfully regulate. Unless the "foreign commerce" involves the United States, Congress would not have the power to regulate it.