903    Dates of Use

When asserting use of a mark in commerce in a trademark or service mark application, an applicant must specify the date of first use anywhere and the date of first use in commerce, either in an original application under §1(a) of the Trademark Act (see 37 C.F.R. §2.34(a)(1)(ii)-(iii) ), or in an allegation of use in an application under §1(b) (see 37 C.F.R. §§2.76(b)(1)(iii),2.88(b)(1)(iii) ).  The dates of use must be verified, i.e., 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). See TMEP §§804–804.05 regarding verification.

An applicant filing under §1(b) is not required to state dates of use in the original application, but must include dates of use in an allegation of use under §1(c) or §1(d). See 37 C.F.R. §§2.76(b)(1)(iii), 2.88(b)(1)(iii).

A §1(b) applicant may assert dates of use that are earlier than the filing date of the application in an amendment to allege use or statement of use.

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.

903.01    Date of First Use Anywhere

In a trademark or service mark application, the date of first use anywhere is the date when the goods were first sold or transported, or the services were first rendered, under the mark, if such use is bona fide and in the ordinary course of trade.   See 15 U.S.C. §1127  (definition of "use" within the definition of "abandonment of mark").  For every applicant, whether foreign or domestic, the date of first use of a mark is the date of the first use anywhere, in the United States or elsewhere, regardless of whether the nature of the use was local or national, intrastate or interstate, or of another type.

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.

903.02    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.

903.03    Relation Between the Two Dates of Use

The application or allegation of use must specify both the date of first use anywhere and the date of first use in commerce.  If the date of first use anywhere was also in a type of commerce that may be regulated by the U.S. Congress (see TMEP §901.03), the date of first use and the date of first use in commerce will be the same date.

The date of first use anywhere will always be either earlier than or the same as the date of first use in commerce.  If the date of first use anywhere specified in an application or allegation of use is later than the date of first use in commerce, the examining attorney must require clarification. See 37 C.F.R. §2.61(b).

The requirement that an applicant specify the date of first use anywhere as well as the date of first use in commerce applies to all applicants, including foreign applicants, in applications filed under §1(a) or §1(b) of the Act.   In re Sevi S.p.A., 1 USPQ2d 1671, 1671 (TTAB 1986).

903.04    Amending Dates of Use

Any change to the dates of use must be supported by an affidavit or declaration under 37 C.F.R. §2.20.  37 C.F.R. §2.71(c).  The affidavit or declaration must be signed by someone properly authorized to sign on behalf of the applicant under 37 C.F.R. §2.193(e)(1).   See TMEP §611.03(a). In addition, because a §1(a)-based application must properly allege current use of the mark, an applicant must attest to dates of use that are on or before the date such application was signed; an applicant may not allege use that has not yet occurred. See 37 C.F.R. §2.33(b)(1). Likewise, the dates of use specified in an allegation of use under §1(c) or §1(d) must be on or before the date the allegation of use was signed. See 37 C.F.R. §§2.76(b)(1)(ii), 2.88(b)(1)(ii); see also TMEP §903.06(a) (noting that, when a date of first use would be interpreted under TMEP §903.06 as later than the date on which the application or allegation of use was signed, the USPTO will presume that the date of first use is the date on which applicant signed the application or allegation of use).

In an application under §1(a), the applicant may amend the dates of use to adopt a date of use that is earlier than the date originally stated or later than the date originally stated, but on or before the application filing date.  The applicant may not amend to specify a date of use that is later than the filing date of the application.  37 C.F.R. §2.71(c)(1).  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.

Example 1: Section 1(a) application filing date: March 9, 2015

First use anywhere: March 6, 2015

First use in commerce: March 6, 2015

Signature date: March 5, 2015

This sequence requires amendment because although the specified dates of use in this example are prior to the filing date, they are after the signature date.

If the specified dates of use in this example are correct, the applicant must resubmit the alleged use dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the specified dates of use in this example are incorrect, but the correct dates of use are on or before the application filing date, the applicant must provide the correct dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the specified dates of use in this example are incorrect and the mark was not in use in commerce on or before the application filing date, the applicant may amend the filing basis to §1(b), if the applicant can satisfy the requirements for the new basis. If the filing basis is amended to §1(b), a registration may not issue until the applicant files an allegation of use. TMEP §1103.

If the signature date is incorrect in this example and the application was signed on or after the dates of use, the applicant may resolve the discrepancy by specifying the correct signature date.

Example 2: Section 1(a) application filing date: March 9, 2015

First use anywhere: March 12, 2015

First use in commerce: March 12, 2015

Signature date: March 9, 2015

This sequence requires amendment because the specified dates of use in this example are after both the filing date and the signature date.

If the mark in this example was in use in commerce on or before the application filing date, the applicant must amend the dates of use to specify the correct dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the mark in this example was not in use in commerce on or before the application filing date, the applicant may amend the filing basis to "intent to use" under §1(b), if the applicant can satisfy the requirements for the new basis. If the filing basis is amended to §1(b), a registration may not issue until the applicant files an allegation of use. TMEP §1103.

In an application under §1(b), after the applicant files an amendment to allege use, the applicant may not subsequently amend the dates of use to recite dates of use that are later than the filing of the amendment to allege use.  If a §1(b) applicant did not use the mark in commerce before the filing date of the amendment to allege use, the applicant may withdraw the amendment to allege use before the application is approved for publication.  37 C.F.R. §2.76(f);   see TMEP §§1104.10(b)(iv), 1104.11.

Example 1: Amendment to allege use filed on March 9, 2015

First use anywhere: March 6, 2015

First use in commerce: March 6, 2015

Signature date: March 5, 2015

The sequence requires amendment because although the specified dates of use in this example are prior to the date on which the amendment to allege use was filed, they are after the signature date.

If the specified dates of use in this example are correct, the applicant must resubmit the alleged use dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the specified dates of use in this example are incorrect, but the correct dates of use are on or before the dates on which the amendment to allege use was filed, the applicant must provide the correct dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the specified dates of use in this example are incorrect and the mark was not in use in commerce on or before the date on which the amendment to allege use was filed, the applicant may request to withdraw the amendment to allege use. If the amendment to allege use is withdrawn, registration may not be granted until the applicant subsequently files an acceptable allegation of use. TMEP §1103.

If the date of the signature in this example is incorrect and the amendment to allege use was signed on or after the dates of use, the applicant may resolve the discrepancy by specifying the correct signature date.

Example 2: Amendment to allege use filed on March 9, 2015

First use anywhere: March 12, 2015

First use in commerce: March 12, 2015

Signature date: March 9, 2015

This sequence requires amendment because the specified dates of use in this example are after the dates on which the amendment to allege use was signed and filed.

If the mark in this example was in use in commerce on or before the date on which the amendment to allege use was filed, applicant must amend the dates of use to specify the correct dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the mark in this example was not in use in commerce on or before the date on which the amendment to allege use was filed, the applicant may request to withdraw the amendment to allege use. If the amendment to allege use is withdrawn, registration may not be granted until the applicant subsequently files an acceptable allegation of use. TMEP §1103.

In an application under §1(b), after the applicant files a statement of use, the applicant may not amend the dates of use to dates that are later than the expiration of the statutory deadline for filing a statement of use (i.e., the amended dates must be within six months of the issuance date of the notice of allowance or before the expiration of an extension of time for filing a statement of use).  37 C.F.R. §2.71(c)(2).  If the mark in a §1(b) application was not in use in commerce before the expiration of the deadline for filing a statement of use, the application will be abandoned; the applicant may not withdraw the statement of use or otherwise amend the application back to intent to use under §1(b).  37 C.F.R. §2.88(f), (k); TMEP §1109.17.

Example 1: Statement of use filed on March 9, 2015

First use anywhere: March 6, 2015

First use in commerce: March 6, 2015

Signature date: March 5, 2015

Statutory deadline for filing statement of use: May 15, 2015

This sequence requires amendment because although the specified dates of use in this example are prior to the date on which the statement use was filed and prior to the statutory deadline for filing a statement of use, they are after the signature date.

If the specified dates of use in this example are correct, the applicant must resubmit the alleged use dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the specified dates of use in this example are incorrect, but the correct dates of use are prior to the expiration of the deadline for filing a statement of use, the applicant must provide the correct dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the specified dates of use in this example are incorrect and the mark was not in use in commerce before the expiration of the time allowed for filing a statement of use, the application will be abandoned. The applicant may not withdraw the statement of use or amend the application back to intent to use under §1(b) (i.e., based on a bona fide intent to use the mark).

Example 2: Statement of use filed on March 9, 2015

First use anywhere: March 12, 2015

First use in commerce: March 12, 2015

Signature date: March 9, 2015

Statutory deadline for filing statement of use: May 15, 2015

This sequence requires amendment because although the specified dates of use in this example are prior to the statutory deadline for filing a statement of use, they are after the date on which the statement of use was signed and filed.

If the specified dates of use in this example are correct, the applicant must resubmit the alleged use dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the specified dates of use in this example are incorrect, but the correct dates of use are prior to the expiration of the deadline for filing a statement of use, the applicant must provide the correct dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the specified dates of use in this example are incorrect and the mark was not in use in commerce before the expiration of the time allowed for filing a statement of use, the application will be abandoned. The applicant may not withdraw the statement of use or amend the application back to intent to use under §1(b) (i.e., based on a bona fide intent to use the mark).

Example 3: Statement of use filed on March 9, 2015

First use anywhere: March 12, 2015

First use in commerce: March 12, 2015

Signature date: March 9, 2015

Statutory deadline for filing statement of use: March 10, 2015

This sequence requires amendment because the specified dates of use are after the date on which the statement of use was signed and filed, and after the statutory deadline for filing a statement of use.

If the specified dates of use in this example are incorrect and the mark was in use in commerce before the expiration of the time allowed for filing a statement of use, the applicant must amend the dates of use to specify the correct dates, verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

If the mark in this example was not in use in commerce before the expiration of the time allowed for filing a statement of use, the application will be abandoned. The applicant may not withdraw the statement of use or amend the application back to intent to use under §1(b) (i.e., based on a bona fide intent to use the mark).

A §1(a) multiple-class application must include dates of use for each class.   See 37 C.F.R. §2.86(a)(3), (b)(3); TMEP §1403.01. If a single-class application containing dates of use is amended to a multiple-class application, the dates-of-use clause must be amended to reflect dates of use for each class.   See 37 C.F.R. §2.86(a)(3), (b)(3); TMEP §1403.01.  If a single-class application is amended to a multiple-class application, but the applicant does not set forth dates of use for the added classes, the examining attorney must inquire as to whether the dates of use apply to all classes and require an amendment, if appropriate.  A supporting affidavit or declaration is not necessary if the dates of use in the original application or in an earlier-filed allegation of use apply to all classes.

A supporting affidavit or declaration is required for any change to the dates of use.  37 C.F.R. §2.71(c).  However, if the applicant has properly verified the date of first use in commerce and, for whatever reason, seeks to amend the date of first use anywhere to the same date as the date of first use in commerce, a verified statement is not required if the originally specified date of first use anywhere is earlier than the date of first use in commerce.  This is not considered a change to the dates of use, because the applicant has already sworn to a date of first use in commerce that necessarily requires, and logically includes, use of the mark "anywhere."  Thus, the applicant has, in fact, already verified in its original application or allegation of use that the date of first use of the mark anywhere is at least as early as the date of first use of the mark in commerce.  Such an amendment may be entered by examiner’s amendment.

When the date of first use anywhere is later than the date of first use in commerce, an unverified amendment is inappropriate because the validity of the verification is called into question by the impossibility of first use anywhere being later than the first use in commerce.

Example 1: First use anywhere: March 6, 1985

First use in commerce: February 10, 1985

An amendment of the date of first use anywhere to February 10, 1985, must be verified, because the validity of the date of first use in commerce is called into question by the fact that the applicant has specified a later date of first use anywhere.

Example 2: First use anywhere: March 6, 1985

First use in commerce: April 10, 1985

An unverified amendment of the date of first use anywhere to April 10, 1985, is acceptable, because first use in commerce logically includes use anywhere.

Example 3: First use anywhere: March 1985

First use in commerce: March 10, 1985

An unverified amendment of the date of first use anywhere to March 10, 1985, is acceptable because the information in the record is not contradictory on its face. There is only an apparent contradiction resulting from the way in which the USPTO construes the information when an applicant provides only the month and year (i.e., as indicating the last day of the month - see TMEP §903.06 regarding indefinite dates of use).

This policy is not applicable to the converse.  That is, an amendment to the date of first use in commerce to conform to the date of first use anywhere is a change (because first use anywhere does not necessarily include first use in commerce) and must be verified with an affidavit or signed declaration under 37 C.F.R. §2.20.

903.05    First Use by Predecessor or Related Company

If the first use anywhere or the first use in commerce was by a predecessor in title to the applicant, or by a related company of the applicant (see 15 U.S.C. §§1055, 1127 ), and the use inures to the benefit of the applicant, the dates of first use may specify that the use on this date was by the applicant’s predecessor in title, or by a related company of the applicant, as the case may be.   See 37 C.F.R. §2.38(a).  It is generally not necessary to give the name of the predecessor in title or the related company.

See TMEP §§1201.03–1201.03(e) regarding current use by a party other than the applicant.

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 email, 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.

903.06(a)    Apparent Discrepancies Between Dates of Use and Date of Execution

Because an application based on §1(a) or an allegation of use under §1(c) or §1(d) must properly allege current use of the mark, an applicant must attest to dates of use in the application or allegation of use that are on or before the date the application or allegation of use was signed; an applicant may not allege use that has not yet occurred. See 37 C.F.R. §§2.33(b)(1), 2.76(b)(1)(ii), 2.88(b)(1)(ii); TMEP §§903.04, 1109.09(a).

If an application, or an allegation of use under §1(c) or §1(d), specifies a date of first use only by the year, or by the month and the year, and the date would otherwise be interpreted under TMEP §903.06 as later than the date on which the application or allegation of use was signed, the USPTO will presume that the date of first use is the date on which applicant signed the application or allegation of use. For example:

Filing date: January 15, 2015

Signature date: December 27, 2014

First use anywhere: 2014

Presumption of first use anywhere under §903.06: December 31, 2014

Amendment to clarify first use date is not required: Although the presumed date of first use under TMEP § 903.06 (December 31, 2014) is later than the signature date (December 27, 2014), it is not later than the filing date (January 15, 2015). Thus, under TMEP § 903.06(a), the examining attorney may presume that the use date is the same as the date of signature.

However, if the date of first use would be interpreted under TMEP § 903.06 as later than the filing date of the application or allegation of use, then amendment of the date of use to an earlier date, supported by an affidavit or declaration under 37 C.F.R. §2.20, is still required. For example:

Filing date: January 15, 2015

Signature date: December 27, 2014

First use anywhere: 2015

Presumption of first use anywhere under §903.06: December 31, 2015

Amendment to clarify first use date is required: The presumed date of first use under TMEP § 903.06 (December 31, 2015) is later than the filing date (January 15, 2015). Thus, under TMEP § 903.06(a), the examining attorney may not presume that the use date is the date of signature and must require an amendment to indicate the date of use more specifically.

If an application or allegation of use specifies the date of signature only by the year, or by the month and the year, and the date would be interpreted under TMEP §903.06 as later than the date(s) of first use, the USPTO will presume that the date of signature was on or after the date of first use.

903.07    Dates of Use in Another Form

If the mark in the application is a composite mark, the applicant may specify dates of first use of a separable element of the composite mark.  These dates will be printed on the certificate of registration for general information.  However, the applicant must also specify the dates of first use of the entire composite mark for which registration is being sought.

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.