TMEP 1306.02(a)(i)(A): Dates of Use

This is the October 2015 Edition of the TMEP

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1306.02(a)(i)(A)    Dates of Use

When specifying the dates of use as a certification mark, the applicant must indicate that the certification mark was first used by the applicant’s authorized users because a certification mark is not used by the applicant itself. See 37 C.F.R. §2.45(a)(4)(i)(D).

The date of first use anywhere is the date when an applicant’s authorized user’s goods were first sold or transported, or an applicant’s authorized user’s services were first rendered, under the mark, if such use is bona fide and in the ordinary course of trade. See 15 U.S.C. §1127 (definition of “use” within the definition of “abandonment of mark”). For every applicant, whether foreign or domestic, the date of first use of a mark is the date of the first use anywhere, in the United States or elsewhere, regardless of whether the nature of the use was local or national, intrastate or interstate, or of another type.

The date of first use in commerce is the date when an applicant’s authorized user’s goods were first sold or transported, or an applicant’s authorized user’s services were first rendered, under the mark in a type of commerce that may be lawfully regulated by the U.S. Congress, if such use is bona fide and in the ordinary course of trade. See 15 U.S.C. §1127 (definition of “use” within the definition of “abandonment of mark”). See TMEP §901.01 for definitions of “commerce” and “use in commerce,” and TMEP §901.03 regarding types of commerce.

In a §1(a) application, the applicant may not specify a date of use that is later than the filing date of the application. If an applicant who filed under §1(a) cannot show that an authorized user used the mark in commerce on or before the application filing date, the applicant may amend the basis to §1(b). See 37 C.F.R. §2.35(b)(1). See TMEP §806.03 regarding amendments to the basis.

Neither a date of first use nor a date of first use in commerce is required to receive a filing date in an application based on use in commerce under §1(a) of the Act. If the application does not include a date of first use and/or a date of first use in commerce, the examining attorney must require that the applicant specify the date of first use and/or date of first use in commerce. See 37 C.F.R. §2.45(a)(4)(i)(D). The dates must be supported by an affidavit or declaration under 37 C.F.R. §2.20. See 37 C.F.R. §§2.45(a)(4)(i)(D), 2.71(c).

An applicant may not file an application on the basis of use of a mark in commerce if such use has been discontinued.