TMEP 1109.09(a): Dates of Use

This is the October 2015 Edition of the TMEP

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1109.09(a)    Dates of Use

The statement of use must include the dates of first use of the mark and first use of the mark in commerce on or in connection with the goods/services/collective membership organization specified in the notice of allowance. 15 U.S.C. §1051(d)(1); 37 C.F.R. §2.88(b)(1)(iii). Where the applicant claims a §1(a) filing basis for some of the goods/services and/or the collective membership organization and a §1(b) filing basis for other goods/services and/or the collective membership organization, the statement of use must include dates of use for the §1(b) goods/services/collective membership organization covered by the notice of allowance. See 37 C.F.R. §2.86(a)(3), (b)(3). See TMEP §903.08 regarding applications in which more than one date is specified for a particular class.

Setting forth the dates of use is not a minimum filing requirement that must be met before the application will be referred to the examining attorney. If the dates of use are omitted from the statement of use, but the statement that “the mark is in use in commerce” is included, the dates may be supplied after the expiration of the statutory period for filing the statement of use. The applicant may also amend or correct the dates of use after the expiration of the deadline for filing the statement of use, if the applicant meets the requirements of 37 C.F.R. §2.71(c)(2). Any amendment to the dates of use must be verified. 37 C.F.R. §2.71(c).

The date of first use in commerce may not be earlier than the date of first use anywhere. TMEP §903.03.

The applicant must state dates of use for each class. 37 C.F.R. §2.86(a)((3), (b)(3). The dates of first use for each class must apply to at least one item in the class but do not have to apply to more than one item. 37 C.F.R. §2.88(b)(1)(iii). However, the applicant must have used the mark in commerce on all items listed in the notice of allowance before filing the statement of use, unless the applicant files a request to divide. 37 C.F.R. §2.88(a)(2); TMEP §1109.03. See TMEP §1110.07 regarding the division of an application in which a statement of use is due.

While the dates of use may be supplied after expiration of the statutory filing period, valid use of the mark in commerce on or in connection with all the goods/services/collective membership organization in the application must be made before the expiration of the statutory filing period. See 37 C.F.R. §2.71(c)(2). If the applicant attempts to amend the dates of use to state a date of first use in commerce that is later than the time permitted for filing the statement of use, the examining attorney must refuse registration because the mark was not in use within the time permitted, and also inform the applicant that the application is deemed abandoned. When refusing registration on this ground, the examining attorney must issue a regular Office action with a six-month response clause. See TMEP §1109.16(b).