There are 4 filing bases on which an application may be based. One filing basis is
use of the mark in commerce
(the other three are filing based on an
intent-to-use the mark in commerce,
filing based on a
pending foreign application, and filing based on a
foreign registration).
Applicants who file based on
use in commerce must be using the mark they
wish to register with the
goods or services in the application prior to or at the time of filing the application.
To base the application on the applicant’s use of the mark in commerce, the applicant must
submit
the following four items: (1) A
statement that the mark is in use in commerce, as defined by
15 U.S.C. §1127, and was in use in such commerce on or in connection with the goods or
services listed in the application on the application filing date; (2) The date of the applicant’s
first use of the mark anywhere on or in connection with the goods or services; (3)
The date of the applicant’s
first use of the mark in commerce as a trademark or service mark;
and (4) One
specimen for each
class showing how the applicant actually uses the mark in commerce. If the specimen is not filed with the
initial application, applicant must submit a statement that the specimen was in use in commerce at least as
early as the application filing date. These items must be verified by the applicant, i.e., supported either by an
affidavit or by a declaration under 37 C.F.R. §§2.20 and 2.33. Trademark Act Section 1(a), 15 U.S.C. §1051(a);
37 C.F.R. §§2.34(a)(1) and 2.59(a); TMEP §806.01(a).
Context: Trademark
