1207.04(c) Criteria for Requesting Concurrent Use Registration
An applicant is eligible to request a registration subject to concurrent use if it meets one or more of the following criteria:
- (1) The concurrent use request is sought pursuant to a decree of a court of competent jurisdiction (or a decision by the Board in a prior concurrent use proceeding) reflecting a final determination of the rights of the concurrent user;
- (2) The owner of the registration consents to the grant of a concurrent use registration to the applicant; or
- (3) The applicant’s date of first use in commerce is before the filing date of the pending applications or of any registrations issued under the Trademark Act of 1946. When a party specified as an excepted user does not own an application or registration, the applicant’s date of first use in commerce is before the filing date of any application to register the mark that may be filed by the excepted user.
See 15 U.S.C. §1052(d); 37 C.F.R. §2.99(e). The applicant has the burden of proving that it is entitled to a concurrent use registration. 37 C.F.R. §2.99(e); America's Best Franchising, Inc. v. Abbott, 106 USPQ2d 1540, 1548 (TTAB 2013) (quoting Over the Rainbow, Ltd. v. Over the Rainbow, Inc., 227 USPQ 879, 883 (TTAB 1985)).