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

§901.03

regarding types of commerce that may be lawfully

regulated by the U.S. Congress.

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,

§1304.02(a)(i)(B)

regarding dates of use for collective

membership marks, and

§1306.02(a)(i)(A)

regarding dates of use for certification marks.