TMEP 903.02: Date of First Use in Commerce

This is the October 2015 Edition of the TMEP

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903.02    Date of First Use in Commerce

In a trademark or service mark application, the date of first use in commerce is the date when the goods were first sold or transported, or the 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. 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) did not use 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. §2.34(a)(1)(ii)-(iii). The dates must be supported by an affidavit or declaration under 37 C.F.R. §2.20. See 37 C.F.R. §§2.34(a)(1)(ii)-(iii), 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.

See TMEP §1303.01(a)(i)(B) regarding dates of use for collective trademarks or collective service marks, TMEP §1304.02(a)(i)(B) regarding dates of use for collective membership marks, and TMEP §1306.02(a)(i)(A) regarding dates of use for certification marks.