806.02(b) Applicant May File Under Both §1(a) and §1(b) in the Same Application
An applicant may rely on both §1(a) and §1(b) in the same application. The applicant may not assert both a §1(a) and §1(b) basis for the identical goods or services in the same application, but the applicant may assert a §1(a) basis for some of the goods or services and a §1(b) basis for other goods or services. This can occur in either a single or multiple-class application. 37 C.F.R. §2.34(b)(1).
When the applicant asserts both §1(a) and §1(b) as bases for registration in the same application, the USPTO will publish the mark for opposition and will issue a notice of allowance (see TMEP §§1106 et seq.) if there is no successful opposition. The goods/services for which a §1(a) basis is asserted will remain in the application pending the filing and approval of a statement of use for the goods/services based on §1(b), unless the applicant files a request to divide. See TMEP §§1110 et seq. regarding requests to divide. If the applicant fails to timely file a statement of use or request for an extension of time to file a statement of use in response to a notice of allowance, the entire application will be abandoned, unless the applicant files a request to divide before the expiration of the deadline for filing the statement of use. TMEP §806.02(d).