TMEP 1003.03: Basis for Registration Required

This is the October 2015 Edition of the TMEP

Previous: §1003.02 | Next: §1003.04

1003.03    Basis for Registration Required

Section 44(d) of the Act provides a basis for receipt of a priority filing date, but not a basis for publication or registration. Before an application may be approved for publication, or allowed for registration on the Supplemental Register, the applicant must establish a basis for registration under §1(a), §1(b), or §44(e) of the Act. See 37 C.F.R. §2.34(a)(4)(iii). See TMEP §1002.02 regarding applications that are entitled to a priority filing date under §44(d), but are not entitled to registration under §44(e) because the foreign application was filed in a treaty country that is not the applicant’s country of origin.

An applicant may claim more than one basis for registration (i.e., §44(e) in addition to §1(a) or §1(b)). If the applicant claims a §1(b) basis, the applicant must file an allegation of use (i.e., either an amendment to allege use under 15 U.S.C. §1051(c) or a statement of use under 15 U.S.C. §1051(d)) before the mark can be registered. See TMEP §806.01(b) regarding the requirements for a §1(b) basis and TMEP §§1004.1004.02 regarding the requirements for registration under §44(e).

A §44(d) applicant may not assert a basis under §66(a) of the Trademark Act, based on an extension of protection of an international registration to the United States. See 37 C.F.R. §§2.34(b), 2.35(a).