1010 Proof of Acquired Distinctiveness in §44 Applications
A §44 applicant may assert that a mark has acquired distinctiveness under 15 U.S.C. §1052(f) if the applicant establishes that the mark has become distinctive of its goods or services in commerce in the same manner that any other applicant must. For these purposes, the applicant may not rely on use other than use in commerce that may be regulated by the United States Congress, that is, the applicant may not rely on use solely in a foreign country or between two foreign countries. See TMEP §1212.08 and cases cited therein for further information about claims of acquired distinctiveness in §44 applications.