903.09 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 (PO Ex. Ch. 1955); Ex parte Wayne Pump Co., 88 USPQ 437 (PO Ex. Ch. 1951).
There must be at least one specified item in a class to which the specified dates pertain. 37 C.F.R. §§2.34(a)(1)(iii) and 2.34(a)(1)(iv), 2.76(c) and 2.88(c). Where the dates of use do not pertain to all items, the particular item to which they do pertain should be designated.
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, and this item should be designated. See TMEP §903.05 regarding amendments to dates of use.
If more than one item of goods or services is specified in a particular class, the Office 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.