1109.09 Use in Commerce
A verified statement that "the mark is in use in commerce" is a minimum requirement that must be satisfied before the expiration of the statutory period for filing the statement of use. 15 U.S.C. §1051(d)(1); 37 C.F.R. §2.88(c)(3). If the examining attorney determines, before taking an action in connection with the statement of use, that the verified statement of use in commerce was omitted as of the filing date, the examining attorney should refer the application to the ITU/Divisional Unit for appropriate action.
An application that omits the allegation of use in commerce, but asserts a verified date of first use in commerce, is considered to be substantially in compliance with the minimum filing requirements under 37 C.F.R. §2.88(c)(3). In re Carnicon Dev. Co., 34 USPQ2d 1541 (Comm’r Pats. 1992); see also In re Conservation Tech. Inc., 25 USPQ2d 1079 (Comm’r Pats. 1992). Thus, if the applicant files a statement of use containing a verified date of first use in commerce on or before the expiration of the period for filing the statement of use, the applicant has met the minimum filing requirements. The examining attorney must require a verified statement that the "mark is in use in commerce" before approving the statement of use. This statement may be filed after expiration of the deadline for filing the statement of use, within the period for response to the examining attorney’s Office action.