There are two dates that must be specified in every trademark/service mark application. They are, the date of first use anywhere and the date of first use in commerce. TMEP 903.03. The date of first use anywhere will always be earlier than or the same as the date of first use in commerce. Id. The date of first use anywhere is the date when goods are first sold or transported, or services are first rendered, under the mark. TMEP 903.01. 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. Id.
In contrast, the date of first use in commerce is the date when goods are first sold or transported, or the services are first rendered, under the mark in a type of commerce that may be lawfully regulated by the U.S. Congress. TMEP 903.02. Commerce is defined as interstate, territorial (commerce in a territory of the U.S. or between the U.S. and a territory), or in between the United States and a foreign country. TMEP 901.03. Intrastate use of a mark may qualify as use in commerce if the intrastate use is of a type that would have a direct effect on interstate commerce. Id. An applicant is not required to specify the type of commerce in which the mark is used unless there is contradictory evidence in the record showing that the commerce is not of the kind that Congress can regulate Id.
In sum, the date of first use anywhere and the date of first use in commerce are likely the same date unless the mark was first used on goods or services that were not in commerce. If the mark was first used in a way that is not in commerce, then the applicant will need to submit that date as well as the date that the mark was first used in commerce. For example, if a mark is used on clothing and the clothing is transported among franchise stores on X date, but the clothing is not sold under the mark until Y date, the mark may have separate first use anywhere and use in commerce dates. However, both are still required for registration.
Written by BrownWinick attorney Jordan Meggison-Decker, along with 2021 Summer Law Clerk Noelle Tipton