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Date of First Use of a Trademark

In previous steps in this series on electronic filing of a trademark application, we have covered:

Now we are going to finish up the goods and services page of the trademark application filing form by finalizing the filing basis, which involves entering dates of use, unless you are filing an “intent to use” application.

As elected previously, our example trademark application is being filed under section 1(a), meaning that the mark is already “in use” in interstate commerce. Therefore, we must make a specific allegation of first use by a date certain, as supported by the previously attached specimens of use.

Enter a Description of the Specimen and Enter the Dates of First Use

As shown in the screen shot below,  I have given a brief description of the specimen. For the description you should enter something like “scanned/ digitally photographed tags or labels” or “scanned/digitally photographed instruction manuals; containers; point of purchase displays.” In the example, I have entered “digital image of a website page.”

Entering a Trademark Application Date of First Use

1. Date of First Use Anywhere

Below the description of specimen box, enter the date of first use of the mark anywhere in commerce. This is generally thought of as the date that you first used the mark to sell your product or service within a local geographic area. This date is always going to be the same or earlier than the next date you will enter for use in interstate commerce.

If you are unsure of the date, but you do know the month that use started, then enter the first day of the following month as your date of first use. Bottom line is that you will need to be able to present evidence of the first use in court if the trademark is every challenged. Date of first use can become an important issue in litigation.

2. Date of First Use in Commerce

Next enter the date of first use of your mark in commerce. This is referring to use of the mark in a way that qualifies as interstate commerce. Federal trademark registration derives partly from the authority given congress under the commerce clause of the U.S. Constitution to regulate interstate commerce.

Nowadays with the internet, it is fairly easy and inexpensive to market your product in multiple states at the same time that you first begin using your mark. If you happened to have filed a foreign application to register your trademark, you will need to consider claiming priority under Section 44. This does not apply in the example here.

Assign the Filing Basis and Review

Once you have attached your specimen of use, and entered your dates of use, click on the Assign Filing Basis button to continue as shown.

Review an assigned filing basis for a trademark application

After you assign the filing basis, the goods/services form will show the filing basis in the right hand column of the table for each class of goods and/or services that you have chosen. If you are filing in more than one class of goods and services, then you may assign different filing basis according to your prior use of the mark.

Review carefully and make sure you are happy with your selection of goods or services and filing basis before continuing. Next, click the Continue button.

Now you are ready to go to the next part in this series about how to file a trademark application electronically.

Or, return to the Trademark Application Headquarters home page.

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