806.03(f) Use in Commerce as of Application Filing Date Required to Add or Substitute §1(a) as a Basis in §44 Application
An applicant can add or substitute a basis only if the applicant meets all the requirements for the new basis. 37 C.F.R. §2.35(b)(1). Therefore, an applicant may not amend a §44 application to claim a §1(a) basis unless the applicant: (1) verifies that the mark is in use in commerce on or in connection with the goods or services listed in the application, and that the mark was in use in commerce on or in connection with the goods or services listed in the application as of the application filing date; (2) provides a specimen, with a verified statement that the specimen was in use in commerce as of the application filing date; and (3) supplies the date of first use anywhere and the date of first use in commerce of the mark. 15 U.S.C. §§1051(a)(1)–1051(a)(4); 37 C.F.R. §§2.34(a)(1), 2.59(a), and 2.71(c)(1); TMEP §§806.01(a), 806.03(i), 903.01, 903.02, 903.04, and 904.05.
If an applicant began using the mark in commerce after the application filing date, the applicant cannot add or substitute §1(a) as a basis. However, the applicant may add or substitute §1(b) as a basis, and concurrently file an amendment to allege use. See TMEP §806.03(d) regarding amendment of the basis from §44 to §1(b), and TMEP §§1104–1104.11 regarding amendments to allege use.