TMEP 903.06: Indefinite Dates of Use

This is the October 2015 Edition of the TMEP

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903.06    Indefinite Dates of Use

In specifying the dates of first use, the applicant should provide dates that are as definite as possible.

The only date that will be recognized for USPTO proceedings is the latest definite date specified by the applicant. However, the applicant may use indefinite terms in describing dates if the applicant considers it necessary due to uncertainty as to the particular date. Although terms such as “at least as early as,” “prior to,” “before,” “on or about,” and “in” are acceptable for the record, these terms are not printed in the Official Gazette or on the certificate of registration.

When a month and year are given without a specified day, the date presumed for purposes of examination is the last day of the month. When only a year is given, the date presumed for purposes of examination is the last day of the year. Some examples are as follows:

  • “Prior to January 1, 1955” is treated as December 31, 1954.
  • “Before February 1961” is treated as January 31, 1961.
  • “On or about June 18, 1987” is treated as June 18, 1987.
  • “1990” is treated as December 31, 1990.
  • “In November 1991” is treated as November 30, 1991.
  • “In the 1920s” is treated as December 31, 1929.

When an applicant alleges only a year prefaced by vague or ambiguous language such as “in the Spring of,” the USPTO will construe the date as the last day of that year, unless the applicant amends to specify a particular date or a particular month of the specified year.

When an applicant’s date of first use in commerce is more specific than its date of first use anywhere, the above presumption can result in an unacceptable dates-of-use clause in which the date of first use in commerce precedes the date of first use anywhere. For example:

First use anywhere: 1991

First use in commerce: January 15, 1991

Usual presumption of first use anywhere: December 31, 1991 (which results in a logical inconsistency).

Therefore, when the above presumption would be applicable, and the result is a date of first use in commerce that precedes the date of first use anywhere, the examining attorney must contact the applicant by telephone or e-mail, if appropriate, for authorization to amend the date of first use anywhere to the same date as the date of the first use in commerce. This may be done by examiner’s amendment.

Indefinite phraseology of the type described above is not considered to be misleading, because it does give notice that, when called upon to do so, the applicant may undertake to prove a date earlier than the one stated.

The presumed dates discussed above are not entered into the automated records of the USPTO, or printed in the Official Gazette or on the certificate of registration. Instead, only the information provided by the applicant is printed. Thus, if the applicant states that the mark was first used “at least as early as January of 1994,” the date printed is “1/0/1994.” If applicant states that the mark was first used “sometime in 1965,” the date printed is “0/0/1965.”

In an inter partes proceeding, a date of use must be established by appropriate evidence. A date of use set forth in an application or registration owned by applicant or registrant is not evidence on behalf of that applicant or registrant. 37 C.F.R. §2.122(b)(2); Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) §704.04.

See TMEP §903.06(a) regarding apparent discrepancies between dates of use and execution dates.