1103.01(c) Application Must Meet Requirements Applicable to Non-Restricted Application
A concurrent use application must specify and contain all the elements required by the rules of practice in trademark cases for a non-restricted application. [ Note 1.]
NOTES:
1. See 37 C.F.R. § 2.32 - 37 C.F.R. § 2.41. See also DataNational Corp. v. BellSouth Corp., 60 F.3d 1565, 35 USPQ2d 1554, 1558-59 (Fed. Cir. 1995) (before an applicant may obtain a concurrent use registration, it must first satisfy requirements which apply to any application whether restricted or unrestricted; applicant may not obtain concurrent use registration where designation is generic in non-territory), aff’g 18 USPQ2d 1862, 1866 (TTAB 1991); Gray v. Daffy Dan’s Bargaintown, 823 F.2d 522, 3 USPQ2d 1306, 1308 (Fed. Cir. 1987) (a valid application cannot be filed at all without lawful use in commerce and for purposes of concurrent use proceeding, such lawful use must begin prior to the filing date of any application with which concurrent use is sought); In re Beatrice Foods Co., 429 F.2d 466, 166 USPQ 431, 436 (CCPA 1970) (extent of such use in commerce is irrelevant so long as it is more than a token use); Bad Boys Bail Bonds, Inc. v. Yowell, 115 USPQ2d 1925, 1933 (TTAB 2015) (motion for summary judgment granted where there is no genuine dispute of material fact that applicant did not use the mark shown in the drawing in commerce prior to the filing date of the application underlying defendant’s registration).