TMEP 1109.01: Minimum Filing Requirements for a Statement of Use

October 2017 Edition of the TMEP

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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.

See TMEP §1109.02 regarding review of the statement of use for compliance with minimum filing requirements, and TMEP §1109.06 regarding the requirements for a complete statement of use.