201 What Constitutes Filing Date
In an application under §1 or §44 of the Trademark Act, 15 U.S.C. §1051 or §1126, the filing date of an application is the date on which all the elements set forth in 37 C.F.R. §2.21(a) (see TMEP §202) are received in the United States Patent and Trademark Office ("USPTO").
In a request for an extension of protection of an international registration to the United States under §66(a) of the Trademark Act, 15 U.S.C. §1141f(a), the filing date is: (1) the international registration date, if the request for extension of protection to the United States is made in an international application; or (2) the date that the subsequent designation was recorded by the International Bureau of the World Intellectual Property Organization ("IB"), if the request for extension of protection to the United States is made in a subsequent designation. 15 U.S.C. §1141f(b); 37 C.F.R. §7.26. See TMEP §§1904 et seq. for further information about §66(a) applications.
Granting a filing date to an application does not necessarily mean that all requirements for registration have been satisfied. It is possible that registration could be refused on a substantive ground. See TMEP §818 for a list of potential grounds of refusal. If registration is not refused on any substantive basis (or if the applicant overcomes any substantive refusals), the applicant must comply with any procedural requirements issued by the examining attorney during examination, in accordance with applicable rules and statutes, in order to obtain a registration.
201.01 Effective Filing Date Controls for Purposes of Determining Priority for Publication or Issue
The filing date of an application (see TMEP §201) is also the effective filing date, except where: (1) the applicant is entitled to priority under 15 U.S.C. §1126(d) or §1141g (see TMEP §206.02); (2) the applicant amends an intent-to-use application filed under 15 U.S.C. §1051(b) to the Supplemental Register (see TMEP §206.01); or (3) the application was filed before November 16, 1989, the applicant had not used the mark in commerce for one year before the application filing date, and the applicant amends to the Supplemental Register on or after November 16, 1989 (see TMEP §206.03). The effective filing date is controlling for purposes of determining priority for publication or issue (see TMEP §1208.01) and constructive use priority (see TMEP §201.02).
201.02 Constructive Use Priority
Under 15 U.S.C. §§1057(c) and 1141f(b), filing any application for registration on the Principal Register, including an intent-to-use application, constitutes constructive use of the mark, provided the application matures into a registration. Upon registration, filing affords the applicant nationwide priority over others, except: (1) parties who used the mark before the applicant’s filing date; (2) parties who filed in the USPTO before the applicant; or (3) parties who are entitled to an earlier priority filing date based on the filing of a foreign application under 15 U.S.C. §1126(d) or §1141g (see TMEP §206.02). See Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 86 USPQ2d 1527 (D.C. Cir. 2008); Zirco Corp. v. American Telephone and Telegraph Co., 21 USPQ2d 1542 (TTAB 1991).