1014 Section 44 Applications and the Supplemental Register
If an application is based solely on Trademark Act §44, an applicant may amend the application from the Principal Register to the Supplemental Register without filing any allegation of use. 15 U.S.C §1126. It is not necessary to change the application filing date after an amendment to the Supplemental Register in a §44 application. TMEP §815.02. See TMEP §1008 regarding the requirement for an allegation of the applicant’s bona fide intention to use the mark in commerce in a §44 application. For an application based solely on §44(d), the application must establish a registration basis under §1 or §44(e) for registration on the Supplemental Register. 37 C.F.R §2.34(a)(4)(iii); TMEP §§806.01(c), 1003.03.
If an application is based on §1(b) and §44, and the applicant files an acceptable allegation of use and requests amendment to the Supplemental Register, the effective filing date will not change to the date on which the applicant filed the allegation of use. TMEP §816.02. In such case, a new search would not be required. See TMEP §1102.03.
If an application is based on §1(b) and §44, and the applicant does not file an acceptable allegation of use but requests to amend the application to the Supplemental Register, the examining attorney must refuse registration under §23 on the ground that the mark is not in lawful use in commerce. 15 U.S.C §1091. See TMEP §815.02 for more information regarding this type of refusal and the elements required for amending to the Supplemental Register.