1104.01 Minimum Filing Requirements for an Amendment to Allege Use
The amendment to allege use must include the following minimum elements before it will be referred to the examining attorney for examination on the merits:
- (1) the prescribed fee for at least one class;
- (2) one specimen of the mark as used in commerce; and
- (3) a verification or declaration signed by the applicant or a person properly authorized to sign on behalf of the applicant that the mark is in use in commerce.
An amendment to allege use that omits the allegation of use in commerce, but asserts a verified date of first use in commerce, may be accepted as substantially in compliance with the minimum filing requirement of 37 C.F.R. §2.76(c) for a verified statement that the mark is in use in commerce. Cf. In re Carnicon Dev. Co., 34 USPQ2d 1541, 1543 (Comm’r Pats. 1992) (holding that the petitioner’s verified date of first use in commerce and the statement that the mark was used in advertising combined to substantially comply with the "the mark is in use in commerce" requirement for purposes of filing a statement of use); In re Conservation Tech. Inc., 25 USPQ2d 1079, 1080 (Comm’r Pats. 1992) (finding, for purposes of the requirement that the statement of use state that "the mark is in use in commerce," the wording "in use in commerce at least since" satisfied the requirement based on the term "since," defined as "from a definite past time until now"). The examining attorney will require an allegation that the "mark is in use in commerce" during examination.
See TMEP §1104.08 regarding the requirements for a complete amendment to allege use.