TMEP 1208.01(b): What Constitutes Effective Filing Date

This is the October 2015 Edition of the TMEP

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1208.01(b)    What Constitutes Effective Filing Date

The filing date of an application under §1 or §44 of the Trademark Act is the date when all the elements designated in 37 C.F.R. §2.21(a) are received at the USPTO. TMEP §201. In an application under §66(a) of the Trademark Act, 15 U.S.C. §1141f(a), the filing date is: (1) the international registration date, if the request for extension of protection to the United States is made in an international application; or (2) the date that the subsequent designation was recorded by the IB, if the request for extension of protection to the United States is made in a subsequent designation. 15 U.S.C. §1141f(b); 37 C.F.R. §7.26; TMEP §201.

While this is generally the effective filing date for purposes of determining priority among conflicting applications, in certain situations another date is treated as the effective filing date. See TMEP §§206.01-206.03. For example, in an application claiming priority under §44(d) or §67 of the Trademark Act based on a foreign application, the effective filing date is the date the foreign application was first filed in the foreign country. TMEP §206.02. In a §1(b) application that is amended to the Supplemental Register on the filing of an acceptable allegation of use, the effective filing date is the date of filing the allegation of use. 37 C.F.R. §2.75(b); TMEP §206.01. However, the USPTO does not alter the original filing date in its automated records. TMEP §206.

If two or more applications conflict, the application with the earliest effective filing date will be approved for publication for opposition or for issuance of a registration on the Supplemental Register, as appropriate. 37 C.F.R. §2.83(a); TMEP §1208.01.

If conflicting applications have the same effective filing date, the application with the earliest date of execution will be approved for publication for opposition or for issuance of a registration on the Supplemental Register. 37 C.F.R. §2.83(b). An application that is unexecuted will be treated as having a later date of execution.

Occasionally, conflicting applications will have the same date of filing and execution. If this situation occurs, the application with the lowest serial number will have priority for publication or issuance. When determining which serial number is the lowest, the examining attorney should disregard the series code (e.g., “76,” “77,” “78,” “79,” or "85") and look only to the six-digit serial number that follows.