TMEP 1003.02: Priority Claim Must Be Filed Within Six Months of Foreign Filing

This is the October 2015 Edition of the TMEP

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1003.02    Priority Claim Must Be Filed Within Six Months of Foreign Filing

An applicant must file a claim of priority within six months after the filing date of the foreign application. 15 U.S.C. §1126(d)(1); 37 C.F.R. §§2.34(a)(4)(i), 2.35(b)(5); Paris Convention Article 4(C)(3). The applicant can submit the priority claim after the filing date of the U.S. application, as long as the claim of priority is submitted within six months of the foreign filing and the claimed priority date is earlier than the filing date of the U.S. application.

Example: If an eligible applicant files in France on December 6, 2011, and in the United States on January 12, 2012, the applicant can add a priority claim to the United States application on or before June 6, 2012, if the applicant meets the requirements of §44(d). The applicant cannot add a priority claim to the U.S. application after June 6, 2012.

If an applicant claims priority under §44(d), but does not specify the filing date of the foreign application, the examining attorney must require that the applicant specify the date of the foreign filing.

If the applicant submits a claim of priority more than six months after the date of the foreign filing, the examining attorney must advise the applicant that it is not entitled to priority. See 15 U.S.C. §1126(d); 37 C.F.R. §§2.34(a)(4)(i), 2.35(b)(5). If the applicant has not claimed another filing basis, the examining attorney must require the applicant to claim and perfect an acceptable basis before the application can be approved for publication or for registration on the Supplemental Register. See TMEP §1003.03 regarding registration basis for §44 applications and TMEP §806.03 regarding amendment of the basis. The examining attorney should ensure that the priority claim is deleted from the Trademark database, and should conduct a new search of USPTO records for conflicting marks.

If the priority period ends on a Saturday, Sunday, or Federal holiday within the District of Columbia, the priority claim may be filed no later than the following day that is not a Saturday, Sunday, or a Federal holiday within the District of Columbia. Paris Convention Article 4(C)(3); 35 U.S.C. §21(b); 37 C.F.R. §2.196.