1103 Allegations of Use
While §1(b) of the Trademark Act provides for filing a trademark or service mark application based on the applicant’s bona fide intention to use the mark in commerce (or the applicant’s bona fide intention, and entitlement, to exercise legitimate control over the use of the mark in commerce, for a collective or certification mark application), registration may not be granted until the applicant files an acceptable allegation of use. The allegation of use must include verified dates of first use (see TMEP §§903–903.08), and a specimen of use for each class (see TMEP §§904–904.07(b), 1301.04–1301.04(d)).
An allegation of use may be filed as either an amendment to allege use or a statement of use. The principal difference between the amendment to allege use and the statement of use is the time of filing. The amendment to allege use may be filed after the application filing date but before approval of the mark for publication. 37 C.F.R. §2.76(a); TMEP §1104.03. If the applicant does not file an acceptable amendment to allege use during initial examination, or if an amendment to allege use is filed and withdrawn, and the USPTO issues a notice of allowance under 15 U.S.C. §1063(b)(2) (see TMEP §§1106–1106.04), the applicant must file a statement of use within six months of the issuance date of the notice of allowance, or within an extension of time granted for filing of the statement of use. 15 U.S.C. §1051(d); 37 C.F.R. §2.88(a). See TMEP §§1109–1109.18 regarding statements of use.
The applicant may not file the allegation of use during the period after approval of the mark for publication and before issuance of the notice of allowance. 37 C.F.R. §§2.76(a), 2.88(a); TMEP §1104.03. This period is known as the “blackout period.” See TMEP §1104.03(b).