TMEP 1003.08: Abandonment of the Foreign Application

This is the October 2015 Edition of the TMEP

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1003.08    Abandonment of the Foreign Application

If the foreign application relied on under §44(d) is abandoned during the prosecution of the U.S. application, the applicant may amend the application to rely on another basis. See TMEP §806.03. If the applicant met the requirements of §44(d) on the filing date of the U.S. application, the applicant will retain the priority filing date even if the foreign application is abandoned. See 37 C.F.R. §2.35(b)(4).

In this situation, the USPTO will presume that the applicant had a continuing valid basis, because the applicant had at least a bona fide intention to use the mark in commerce as of the application filing date, unless there is contradictory evidence in the record. See 37 C.F.R. §2.35(b)(3); TMEP §806.03(h).