T.M.E.P. § 903.07
Indefinite Dates of Use

Executive summary:

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903.07 Indefinite Dates of Use

In specifying the dates of first use, the applicant should give dates that are as definite as possible.

The only date that will be recognized for Office proceedings is the latest definite date specified by the applicant. However, the applicant may use indefinite terms in describing dates if the applicant considers it necessary due to uncertainty as to the particular date. Although terms such as "at least as early as," "prior to," "before," "on or about" and "in" are acceptable for the record, these terms are not printed in the Official Gazette or on the certificate of registration.

When a month and year are given without a specified day, the date presumed for purposes of examination is the last day of the month. When only a year is given, the date presumed for purposes of examination is the last day of the year. Some examples are as follows:

• "Prior to January 1, 1955" is treated as December 31, 1954.

• "Before February 1961" is treated as January 31, 1961.

• "On or about June 18, 1987" is treated as June 18, 1987.

• "1990" is treated as December 31, 1990.

• "In November 1991" is treated as November 30, 1991.

• "In the 1920s" is treated as December 31, 1929.

When an applicant alleges only a year prefaced by vague or ambiguous language such as "in the Spring of," the Office will construe the date as the last day of that year unless the applicant amends to specify a particular date or a particular month of the specified year.

When an applicant's date of first use in commerce is more specific than its date of first use anywhere, the above presumption can result in an unacceptable dates-of-use clause in which the date of first use in commerce precedes the date of first use anywhere. For example:

First use anywhere: 1991

First use in commerce: January 15, 1991
Usual presumption of first use anywhere: December 31, 1991 (which results in a logical inconsistency).

Therefore, when the above presumption would be applicable, and the result is a date of first use in commerce that precedes the date of first use anywhere, the examining attorney should contact the applicant by telephone, if appropriate, for authorization to amend the date of first use anywhere to the same date as the date of the first use in commerce. As noted in TMEP §903.05 , this may be done by examiner's amendment.

Indefinite phraseology of the type described above is not considered to be misleading, because it does give notice that, when called upon to do so, the applicant may undertake to prove a date earlier than the one stated.

The presumed dates discussed above are not entered into the automated records of the Office, or printed in the Official Gazette or on the certificate of registration. Instead, only the information provided by the applicant is printed. Thus, if the applicant states that the mark was first used "at least as early as January of 1994," the date printed is "1/0/1994." If applicant states that the mark was first used "sometime in 1965," the date printed is "0/0/1965."

In an inter partes proceeding, a date of use must be established by appropriate evidence unless the party to the proceeding is entitled to rely on a date by virtue of ownership of a registration or filing of an application. 37 C.F.R. 2.122(b)(2); Trademark Trial and Appeal Board Manual of Procedure ("TBMP") §704.04.

See TMEP §903.07(a) regarding apparent discrepancies between dates of use and execution dates.

903.07(a) Apparent Discrepancies Between Dates of Use and Date of Execution

If an application, amendment to allege use under 15 U.S.C. 1051(c), or statement of use under 15 U.S.C. 1051(d) specifies a date of first use only by the year, or by the month and the year, and the date would be interpreted under TMEP §903.07 as later than the date on which the application or allegation of use was signed, the Office will presume that the date specified is the date of the signing of the application or allegation of use. In this case, it is not necessary to amend the application to indicate the date of use more specifically. Amendment is still required, however, if the date specified would be interpreted as later than the filing date of the application or allegation of use.

If an application, amendment to allege use under 15 U.S.C. 1051(c), or statement of use under 15 U.S.C. 1051(d) specifies the date of signature only by the year, or by the month and the year, and the date would be interpreted under TMEP §903.07 as later than the date(s) of first use, the Office will presume that the date of signature was on or after the date of first use.