TMEP 903.08: More than One Item of Goods or Services

This is the October 2015 Edition of the TMEP

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903.08    More than One Item of Goods or Services

If more than one item of goods or services is specified in a particular class, the date of first use anywhere and date of first use in commerce do not have to pertain to every item in the class. It might be that the mark, although in use on all of the items at the time the application or allegation of use was filed, was first used on various items on differing dates, so that it would be cumbersome to designate the dates for all items individually. See Sunshine Biscuits, Inc. v. Berke Bakeries, Inc., 106 USPQ 222 (PTO 1955); Ex parte Wayne Pump Co., 88 USPQ 437 (PTO 1951).

There must be at least one item in a class to which the specified dates pertain. See 37 C.F.R. §§2.34(a)(1)(v), 2.44(a)(4)(i)(B), 2.45(a)(4)(i)(D). Where the dates of use do not pertain to all items, the applicant should designate the particular item(s) to which they do pertain.

Where the dates of use do not pertain to every item in the class, and the identification of goods or services is amended to delete the item(s) to which the dates of use pertain, the applicant must amend the dates-of-use clause to specify the dates that apply to an item that remains in the identification. See TMEP §903.04 regarding amendments to dates of use.

If more than one item of goods or services is specified in a particular class, the USPTO will presume that the dates of use apply to all the goods or services, unless the applicant states otherwise.

Where more than one date is specified for a particular class, the earliest date will be printed in the Official Gazette and, if a registration issues, on the certificate of registration. The Official Gazette and registration certificate will not indicate which item is specified.

See TMEP §1304.02(a)(i)(B) regarding dates of use for collective membership marks.