815.02 Elements Required
An application requesting registration on the Supplemental Register should state that the applicant requests registration on the Supplemental Register. If no register is specified, the USPTO will assume that the applicant is requesting registration on the Principal Register.
In an application under §1(b), the mark must be in lawful use in commerce on or in connection with the goods/services/classes before the mark can register. 15 U.S.C. §1091(a). Under 37 C.F.R. §2.47(d), an intent-to-use applicant is not eligible for registration on the Supplemental Register until the applicant has filed an acceptable allegation of use. When the applicant amends to the Supplemental Register after filing an acceptable allegation of use, the effective filing date of the application is the date on which the applicant filed the allegation of use, i.e., the date on which the applicant met the minimum filing requirements of 37 C.F.R. §2.76(c) for an amendment to allege use ( see TMEP §1104.01), or 37 C.F.R. §2.88(c) for a statement of use ( see TMEP §1109.01). 37 C.F.R. §2.75(b). See also TMEP §§816.02 and 1102.03 regarding intent-to-use applications and the Supplemental Register.
If an applicant submits a §1(b) application requesting registration on the Supplemental Register for which no acceptable allegation of use has been filed, the examining attorney must refuse registration under §23 of the Trademark Act, 15 U.S.C. §1091, on the ground that the mark is not in lawful use in commerce. The examining attorney will withdraw the refusal if the applicant submits an acceptable allegation of use.
If the application is based solely on §44, the applicant may seek registration on the Supplemental Register without alleging use in commerce or use anywhere in the world. 15 U.S.C. §1126(e); 37 C.F.R. §2.47(b); TMEP §1009. However, the §44 application for a trademark or service mark must include the required verified statement of the applicant's bona fide intention to use the mark in commerce. See 15 U.S.C. §1126(d), (e); 37 C.F.R. §2.34(a)(3)(i), (a)(4)(ii). See TMEP §§1303.01(b)(i), 1304.02(b)(i), and 1306.02(b)(i) regarding the required verified statement for a collective or certification mark application based on §44.