816.02 Effective Filing Date
Intent-to-Use Applications
As noted in TMEP §815.02, an intent-to-use applicant may file an amendment to the Supplemental Register only after the applicant has begun using the mark and filed an acceptable allegation of use. 37 C.F.R. §2.47(d). In such a case, if the application is based solely on §1(b), the effective filing date of the application is the filing date of the allegation of use, i.e., the date on which the applicant met the minimum filing requirements of 37 C.F.R. §2.76(c) for an amendment to allege use ( see TMEP §1104.01), or 37 C.F.R. §2.88(c) for a statement of use ( see TMEP §1109.01). 37 C.F.R. §2.75(b); TMEP §1102.03. Note, however, that if the application includes a §44(d) filing basis with a priority filing date in addition to the §1(b) basis, the effective filing date (i.e., the priority filing date) is not changed to the filing date of the allegation of use. When the applicant files an allegation of use that complies with the minimum requirements of 37 C.F.R. §2.76(c) or 37 C.F.R. §2.88(c) and an amendment to the Supplemental Register in response to a refusal, the examining attorney must follow the procedures outlined in TMEP §714.05(a)(i).
Amendment of an application from the Supplemental to the Principal Register does not change the effective filing date of an application. Kraft Grp. LLC v. Harpole, 90 USPQ2d 1837 (TTAB 2009) (holding that the filing date did not change when an applicant who originally sought registration on the Supplemental Register, without alleging use in commerce, amended to seek registration on the Principal Register under §1(b)).
Applications Filed Before November 16, 1989
Prior to November 16, 1989, one year’s lawful use of the mark in commerce was required to apply for registration on the Supplemental Register. Effective November 16, 1989, an applicant may apply for registration on the Supplemental Register at any time after commencing use of the mark in commerce.
An applicant may amend a pending application to request registration on the Supplemental Register at any time after use of the mark has commenced. The date of the amendment to the Supplemental Register becomes the effective filing date of the application if: (1) the applicant had not used the mark in commerce for one year before the application filing date; and (2) the applicant amends to the Supplemental Register on or after November 16, 1989.
See also TMEP §§206–206.04 regarding effective filing date.