1109.01 Minimum Filing Requirements for a Statement of Use
The statement of use must meet the following minimum filing requirements before it may be referred to an 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 stating that the mark is in use in commerce.
37 C.F.R. §2.88(c).
A statement of 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. §2.88(c)(3) for a verified statement that the mark is in use in commerce. In re Carnicon Dev. Co., 34 USPQ2d 1541, 1543 (Comm’r Pats. 1992); see In re Conservation Tech. Inc., 25 USPQ2d 1079, 1080 (Comm’r Pats. 1992). In such case, the examining attorney will require a verified allegation that the “mark is in use in commerce” during examination. See TMEP §1109.09.