# TMEP § 1003.01: The “First-Filed” Requirement > Federal · Agency guidance · In force URL: https://www.frixlaw.com/law-library/statutes/TMEP_S1003.01 ## Section - **Citation:** TMEP § 1003.01 - **Heading:** The “First-Filed” Requirement - **Jurisdiction:** Federal - **Kind:** Agency guidance - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** USPTO TMEP / Chapter 1000 - Applications Under Section 44 / TMEP § 1003.01 ## Text The application relied upon under §44(d) must be the applicant’s first application filed in any treaty country for the same mark and for the same goods or services. The USPTO will presume that the application identified as the basis for the priority claim was the first filed, unless there is contradictory evidence in the record (e.g., in the application itself or submitted via a Letter of Protest that has been accepted; see TMEP §1715.01 regarding appropriate subjects to be raised in a letter of protest). If the first-filed application was withdrawn, abandoned, or otherwise disposed of without having any rights outstanding, and did not serve as a basis for claiming a right of priority, the §44(d) priority claim may be based upon a subsequently filed application in the same foreign country or common office of several states. Generally, a written explanation by the applicant or the applicant’s attorney that the first-filed application was withdrawn, abandoned, or otherwise disposed of without having any rights outstanding, and did not serve as a basis for claiming a right of priority, will be sufficient. The requirement for the same goods or services means that the identification may not exceed the scope of the identification in the foreign application and must be different from, and not equivalent to, the identification covered by any previous application or registration for the mark in a treaty country. See 37 C.F.R. §2.32(a)(6) ; TMEP §1402.01(b) . Thus, for example, if evidence in the record indicates that an applicant who owns an EU trademark registration with the European Union Intellectual Property Office for “footwear” subsequently files a French trademark application for “coats, pants, and shoes,” and then files a U.S y previous application or registration for the mark in a treaty country. See 37 C.F.R. §2.32(a)(6) ; TMEP §1402.01(b) . Thus, for example, if evidence in the record indicates that an applicant who owns an EU trademark registration with the European Union Intellectual Property Office for “footwear” subsequently files a French trademark application for “coats, pants, and shoes,” and then files a U.S. application within six months seeking a priority filing date for “coats, pants, and shoes” based on the French trademark application, the §44(d) priority claim would be valid only as to “coats, pants” because the French trademark application was not the first filed in a treaty country for “shoes,” which is encompassed by or equivalent to “footwear” in the EU trademark registration. Note, however, that if the foreign application that formed the basis for the EU trademark registration was itself filed within six months of the filing date of the U.S. application, the EU trademark application may serve as a basis for priority for “shoes” in the U.S. A single U.S. application may claim priority for different goods and services on the basis of different foreign applications for the same mark as long as all foreign applications claimed were the first-filed for the identified goods/services and were filed no earlier than six months prior to the U.S. application filing date. If the examining attorney determines that the application relied on was not the first filed in any treaty country as to some or all of the goods/services, the examining attorney must advise the applicant that it is not entitled to priority as to the relevant goods/services. If the applicant has not claimed another filing basis, the examining attorney must require the applicant to claim and perfect a basis for any goods/services not entitled to priority before the application can be approved for publication or for registration on the Supplemental Register xamining attorney must advise the applicant that it is not entitled to priority as to the relevant goods/services. If the applicant has not claimed another filing basis, the examining attorney must require the applicant to claim and perfect a basis for any goods/services not entitled to priority before the application can be approved for publication or for registration on the Supplemental Register. See TMEP §1003.03 regarding registration basis for §44 applications and §806.03 regarding amendment of the basis. If the applicant is not entitled to priority as to any goods/services, the examining attorney must ensure that the priority claim is deleted from the Trademark database. If the applicant is entitled to priority as to some, but not all, of the goods/services, the examining attorney must ensure that the identification in the Trademark database indicates those goods/services that have priority. See TMEP §806.02(a) . The examining attorney must also conduct a new search of USPTO records for conflicting marks as to any goods/services not entitled to priority. ## Nearby sections - [TMEP § 1001 Section 44 Applications - General](https://www.frixlaw.com/law-library/statutes/TMEP_S1001.md) - [TMEP § 1002.01 Eligible Applicants Under §44(e)](https://www.frixlaw.com/law-library/statutes/TMEP_S1002.01.md) - [TMEP § 1002.02 Eligible Applicants Under §44(d)](https://www.frixlaw.com/law-library/statutes/TMEP_S1002.02.md) - [TMEP § 1002.03 Establishing Entitlement Under a Treaty or Foreign Law](https://www.frixlaw.com/law-library/statutes/TMEP_S1002.03.md) - [TMEP § 1002.04 Establishing Country of Origin](https://www.frixlaw.com/law-library/statutes/TMEP_S1002.04.md) - [TMEP § 1002.05 U.S. Applicants](https://www.frixlaw.com/law-library/statutes/TMEP_S1002.05.md) - [TMEP § 1003 Section 44(d) - Priority Filing Date Based on a Foreign Application](https://www.frixlaw.com/law-library/statutes/TMEP_S1003.md) - [TMEP § 1003.01 The “First-Filed” Requirement](https://www.frixlaw.com/law-library/statutes/TMEP_S1003.01.md) - [TMEP § 1003.02 Priority Claim Must Be Filed Within Six Months of Foreign Filing](https://www.frixlaw.com/law-library/statutes/TMEP_S1003.02.md) - [TMEP § 1003.03 Basis for Registration Required](https://www.frixlaw.com/law-library/statutes/TMEP_S1003.03.md) - [TMEP § 1003.04(a) Applications Based Solely on Section 44](https://www.frixlaw.com/law-library/statutes/TMEP_S1003.04(a).md) - [TMEP § 1003.04(b) Multiple-Basis Applications](https://www.frixlaw.com/law-library/statutes/TMEP_S1003.04(b).md) - [TMEP § 1003.04(c) Periodic Inquiries Issued as to Status of Foreign Application](https://www.frixlaw.com/law-library/statutes/TMEP_S1003.04(c).md) - [TMEP § 1003.05 Section 44(d) and Priority for Publication](https://www.frixlaw.com/law-library/statutes/TMEP_S1003.05.md) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/TMEP_S1003.01. Check the current official text before relying on it. Not legal advice.