TMEP 1104.10(b)(iv): Use in Commerce and Dates of Use

October 2017 Edition of the TMEP

Previous: §1104.10(b)(iii)(A) | Next: §1104.10(b)(v)

1104.10(b)(iv)    Use in Commerce and Dates of Use

An amendment to allege use must include a verified statement that "the mark is in use in commerce," and must specify the dates of first use of the mark and first use of the mark in commerce for each class. 37 C.F.R. §2.76(b)(1)(ii)-(iii). The date of first use in commerce may not be earlier than the date of first use anywhere. TMEP §903.03. In addition, the dates of use may not be after the date the amendment to allege use was signed, because current use of the mark must be properly alleged; an applicant may not allege use that has not yet occurred. See 37 C.F.R. §2.76(b)(1)(ii); see also TMEP §§903.04 (regarding amending dates of use) 903.06(a) (regarding discrepancies between dates of use and date of execution).

The applicant may amend the dates of use if the amendment is supported with an affidavit or declaration under 37 C.F.R. §2.20. 37 C.F.R. §2.71(c). The applicant may not amend the dates of use to recite dates of use that are subsequent to the filing of the amendment to allege use. However, the applicant may withdraw the amendment to allege use. 37 C.F.R. §2.76(f).

The requirement for a verified statement that "the mark is in use in commerce" is a minimum filing requirement that must be satisfied before the amendment to allege use may be examined on the merits. 37 C.F.R. §2.76(c)(3). See TMEP §§1104.01–1104.01(c) regarding amendments to allege use that do not meet minimum filing requirements.

See TMEP §9.3 regarding dates of use for a trademark or service mark application. See TMEP §§1303.01(a)(i)(B), 1304.02(a)(i)(B), and 1306.02(a)(i)(A) regarding dates of use for a collective or certification mark application.