901.04 Inquiry Regarding Use in Commerce
It is the responsibility of the applicant and the applicant’s attorney to determine whether an assertion of use in commerce is supported by the relevant facts. The validity of an applicant’s assertion of use in commerce generally does not arise in ex parte examination. The examining attorney will normally accept the applicant’s verified claim of use in commerce without investigation into whether the use referred to constitutes "use in commerce."
An applicant is not required to specify the type of commerce in which the mark is used. See TMEP §901.03. However, if the applicant specifically states that the mark is in use in commerce that cannot be regulated by Congress (e.g., "intrastate commerce" or "foreign commerce"), the applicant has not met the statutory requirement for a verified statement that the mark is in use in commerce, and a specification of the date of first use in commerce, as defined in §45 of the Trademark Act. Accordingly, the examining attorney must advise the applicant that it appears that the mark is not in use in a type of commerce that can be regulated by Congress and must require that the applicant either submit a verified statement that "the mark is in use in commerce that can be regulated by Congress," or amend the basis of the application to a bona fide intention to use the mark in commerce under §1(b) of the Act, if permitted by 37 C.F.R. §2.35. See TMEP §806.03(c) regarding amendment of the basis from §1(a) to §1(b).
If the application record contains evidence or information indicating that the mark may not be in use in commerce that "may lawfully be regulated by Congress," the examining attorney must ask the applicant whether there is use in commerce that may lawfully be regulated by Congress and require a satisfactory explanation or showing of such use. When necessary, the examining attorney may also require additional information or evidence concerning the use of the mark to permit full consideration of the issue. 37 C.F.R. §2.61(b); TMEP §814.