First Use

We are often asked what is 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 is the date when the goods were first sold or transported or the services were first rendered under the mark anywhere, provided such use is bona fide and in the ordinary course of trade. 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.

Date of First Use in Commerce

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 United States Congress, provided such use is bona fide and in the ordinary course of trade.

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 first use made by the applicant was in commerce that may be regulated by Congress, 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 an allegation of use is later than the date of first use in commerce, the trademark office will require clarification. 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 used based applications and intent to use applications that are later converted to use by filing an allegation of use.