The trademark application process requires trademark applicants to submit the date when they first use the trademark anywhere, and when they first used the trademark in commerce
As part of the trademark application process at the United States Patent and Trademark (USPTO), trademark applicants must submit the date they first used the trademark anywhere and the date they first used the trademark in commerce. For use in commerce based trademark applications, the dates must be submitted with the initial application. Whereas for intent to use based trademark applications, the dates must be submitted at the end of the application process as part of the Statement of Use.
Date of First Use on Statement of Use Online Form
Important to Claim as Early a Date as Possible
There is a principle in trademark law that the person to first use a trademark has priority over anyone who subsequently adopts and uses a confusingly similar trademark. In many likelihood of confusion cases at the Trademark Trial and Appeal Board (TTAB) or federal district court hinge on one party proving they used the trademark earlier than the other party in the case. The requirement during the trademark application to submit a date of first use anywhere and first use in commerce provides the TTAB or a court evidence of when a trademark was first used. Given the importance the first use date can have in a case where the parties are disputing who had first priority, it is important to claim a first date use that is as soon as possible during the trademark application process in the event litigation over priority arises down the rode. When a trademark owner does not know the exact date of the sale, but knows the month, they can enter the month and the year, and the presumption is that the first use was on the last day of the month. The fact that there are two separate dates often confuses people, so we are going to break down the differences.
First Use Dates on Trademark Application Form
Date of First Use of the Mark Commerce
The date of first use of the mark in commerce is less flexible than its counterpart, date of first use of the mark anywhere. In order to claim use of a trademark in commerce, the trademark applicant must use the date when the trademark was used in commerce that “Congress may regulate.” Congress can regulate any interstate commerce or international commerce. For example, when a trademark owner completes a sale to a person or entity from a different state or country, that would count as use of the trademark in commerce that Congress may regulate. Congress cannot regulate sales between two people from and living in the same state and cannot regulate advertising prior to a sale.
Date of First Use of the Mark Anywhere
Unlike the date of first use of the mark in commerce, the date of first use of the mark anywhere can be any use of the mark whether or not it can be regulated by Congress. For instance, the first time the trademark was used in advertisements, online or in an intrastate sale would constitute the first use of the mark anywhere. Often times the first use date in commerce and first use date anywhere are the same. However, when they are different, it is because the trademark owner used the mark anywhere before they used it in commerce that can be regulated by Congress.
Do you have any questions about first use dates? Leave a comment below or contact us directly and we will do our best to answer.