TMEP 806.03(f): Use in Commerce as of Application Filing Date Required to Add or Substitute §1(a) as a Basis in §44 Application

October 2017 Edition of the TMEP

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806.03(f)    Use in Commerce as of Application Filing Date Required to Add or Substitute §1(a) as a Basis in §44 Application

An applicant may add or substitute a basis only if the applicant meets all the requirements for the new basis. 37 C.F.R. §2.35(b)(1).  Therefore, an applicant may not amend a §44 application to claim a §1(a) basis unless the applicant: (1) verifies that the mark is in use in commerce and was in use in commerce as of the application filing date; (2) provides a specimen, with a verified statement that the specimen was in use in commerce as of the application filing date; and (3) supplies the date of first use anywhere and the date of first use in commerce of the mark. 15 U.S.C. §1051(a); 37 C.F.R. §§2.34(a)(1), 2.59(a), 2.71(c)(1); TMEP §§806.01(a), 806.03(i), 903.01, 903.02, 903.04, 904.05.

If an applicant began using the mark in commerce after the application filing date, the applicant may not add or substitute §1(a) as a basis.  However, the applicant may add or substitute §1(b) as a basis, and concurrently file an amendment to allege use.  See TMEP §806.03(d) regarding amendment of the basis from §44 to §1(b), and TMEP §§1104–1104.11 regarding amendments to allege use.