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 applicant's goods or services in commerce in the same manner that any other applicant must. See 37 C.F.R. §2.41. For these purposes, the applicant may not rely on use other than use in commerce that may be regulated by the U.S. 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. See also TMEP §1212 for general information regarding the three basic types of evidence that may be used to establish acquired distinctiveness for trademarks, service marks, collective marks, and certification marks.