DATES OF FIRST USE FOR TRADEMARK AND SERVICE MARK APPLICATIONS
An application for registration of a trademark or service mark must accurately state the date on which the mark was first used anywhere, and also the date on which the mark was first used in interstate commerce.
What does first use anywhere mean? The Trademark Manual of Examining Procedure (the "TMEP") states that "The date of first use anywhere is the date when the goods were first sold or transported or the services first rendered under the mark, if such use is bona fide and in the ordinary course of trade. For every applicant, whether foreign or domestic, the date of first use of a mark is the date of the first use anywhere, in the United States or elsewhere, regardless of whether the nature of the use was local or national, intrastate or interstate, or of another type". - T.M.E.P. § 903.01
Under trademark law, the first use date does not indicate the date on which the trademark or service mark itself was first publicly used. Instead, first use means the earliest date on which (1) the goods or services for which the mark is being registered were sold (or offered and available to customers) in the ordinary course of trade, AND (2) the mark was used in conjunction with the commercial sale or offering for sale of those goods or services. For example, if a company begins using a trademark or service mark in an ad campaign for a new product or service on January 1, but does not make the product or service available to customers until March 1, the date of “first use” of the mark will be March 1.
Generally, acceptable use is as follows:
For goods: the mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce.
For services: the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in commerce.
What does use in commerce mean? For the purpose of obtaining a federal registration, the date of first use in commerce is the date when the goods were first sold or transported, or the services first rendered, under the mark in a type of commerce that may be lawfully regulated by Congress, so long as such use is bona fide and in the ordinary course of trade, and not use simply made to reserve rights in the mark.
Can the date of first use anywhere and date of first use in commerce be different? In most cases, these dates will be the same because the goods or services represented by the mark are often offered or sold across state lines at the outset or are offered or sold in a way that impacts interstate commerce. In unusual cases, though, there may be some period of purely intrastate sales, before the necessary interstate commerce requirement is fulfilled. In those cases, the date of “first use” anywhere will be earlier than the date of “first use” in interstate commerce.
Must these dates be exact? Not necessarily. It is best to identify the earliest date (day, month, and year) on which you would be able to prove from your records that first use occurred. If the exact date is difficult to establish, you may give just the month and year of first use, or even just the year of first use. In such cases, the effective date of first use for which you will be given credit if and when the registration issues will be the last day of the month or year indicated in the application. The earlier the date of first use that can be claimed, the stronger the rights conferred by the registration will be; however, if there is any doubt as to whether you could prove that the mark was in use on the date to be claimed in the application, it is advisable to select the later, provable date.
Determining these dates can be complicated and, if an incorrect date is used, your trademark may be invalidated in court later. If you have any questions or concerns regarding the appropriate dates of first use to be claimed in an application, please let me know.