Register, Enforce, Defend Licensing And Litigation

First Use

We are often asked the difference between the date of first use anywhere and the date of first use in commerce.

Date Of First Use Anywhere

The date of first use anywhere occurs when the products were either first transported or sold. This date can also refer to the first time that the terms of services were first completed under the service mark. The manner in which this date is determined applies to both foreign and domestic applicants, regardless of how the product was used. The same determination applies regardless of the location in which the mark was used, whether this occurred locally, nationally, between states, within states or elsewhere.

Date Of First Use In Commerce

Applicants may identify the date of first use in commerce as the first date that their products were sold or transported or the first date that they advertised or concluded the terms of their service using their service mark. In order to receive the protections afforded by the date of first use in commerce, applicants must show that the mark was used in a bona fide form of commerce that is regulated by Congress.

Date Of First Use In Use-Based Applications

In a §1(a) application (an application based on use), 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 before the application filing date, the applicant may amend the basis to §1(b) (an application based on intent to use). 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 will require that the applicant state the date of first use and/or date of first use in commerce. The dates alleged must be supported by an affidavit or declaration. An applicant may not file an application on the basis of use of a mark in commerce if such use has been discontinued.

Relationship Between The Two Dates Of Use

The application or an allegation of use must specify both the date of first use anywhere and the date of first use in commerce. If the product was first bought or sold in a form of trade that Congress regulates, the date of first use and first use in commerce will be the same. The date of first use anywhere shall occur earlier than the application date or on the date the product was first used. The trademark office will require applicants to provide their rationale for including dates that occur after the date of first use in commerce in their application. The requirement that an applicant specify the date of first use anywhere as well as the date of first use in commerce applies to foreign applicants as well as domestic applicants in both use-based applications and intent-to-use applications that are later converted to use by filing an allegation of use.