Date of First Use of Mark in Commerce?

1. What it says. If you currently only intend to use the TM, you may not have a date of 1st use. You're suposed to start use within 6 months of the date of your intent. 2. Right. 3. Any of those can show 1st use. 4. Right. If you had a use before the filing date, you wlould ahve filed a 1a and not a 1b application.

It is number 2 or 3. Sales, nationally or internationally will suffice. Samples and advertisements may qualify but sales are safest, real sales, not just pretend sales to a friend.

I can break down your questions to essentially 3 questions: 1. What is "use in Commerce" (let's call this "UC") within the meaning of the Trademark Act (Lanham Act)? - Good question. This has a very technical, legal meaning. 2. What is my first date of UC? 3. Can there be UC before the filing date of an intent to use application? Yes. 1. The phrase "use in Commerce" is a technical, legal meaning because "use" is defined in the language of the Lanham Act and interpreted through at least 23 years of case law under the current version of the statute. "Commerce" has the same meaning throught federal law and I capitalize it because it refers to the Constitutional interpretation of what the federal government can regulate as opposed to the states. Specifically, that is commerce between states; between the U.S. and any foreign countries or territories; and any commerce in a U.S. territory like D.C., Puerto Rico, Guam or perhaps a military base in Afghanistan; etc. As far as interstate commerce has been defined, for products I believe that is fairly straightforward - travels across state borders; but for services that could refer to services located within a particular state but advertised to consumers out of state or people cross the state border to use the service; etc. Virtually any commerce in the U.S. has been interpreted as interstate commerce since the Roosevelt Administration but, interestingly, the Supreme Court may be weighing in on this in reference to Obama's healthcare legislation. The definition of "Use" in the current version of our trademark statute is: "The bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. ... (1) on goods when– (A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and (B) the goods are sold or transported in commerce ... This essentially means use in ordinary interstate commerce regulatable by Congress which is not "token use" and ordinary use is defined as what is ordinary and customary for your particular industry. That means that sending a sample to a friend in another state is not use (because token) but providing samples in stores for market testing or clinical pharmaceutical trials have been understood to be use if the product clearly contains the mark affixed to it in a manner that identifies the source of the product as is customary in your trade. Ordinary commerce includes charities so profits need not be made and fees not necessarily charged. Services have to actually be offered, i.e. performed as well as advertised. Advertising alone has been considered "analogous use" that can confer some common law rights but not use in Commerce sufficient for registration. 2. So your specific date of first use varies for your specific situation - type of goods/services; how used meaning how the goods/services were offered, sold; how the mark was placed on your goods or advertised your services; etc. You should have a TM attorney help you with this because I only briefly skimmed the surface of the various rules of trademark and service mark use. 3. The date you allege first use of your mark CAN BE before the filing date of your ITU application because the USPTO acknowledges that you may be using your mark when you file the application but not know if that constitutes legal UC because of how legally techincal this definition is (as you see). I disagree with Ms. Koslyn to the extent this is inconsistent with her answer. What you state for your date of first use is not so critical because it can be re-proved in litigation if it becomes an issue. However, the fact that you had and have been "using" your mark as UC is defined is critical because your resulting registration can be challenged on that basis.

All of your questions should be answered by your own trademark attorney. If you don't have one then the next best thing is to read the manual that the Trademark Examiner's use. The section on "use in commerce" is here: http://tess2.uspto.gov/tmdb/tmep/0900.htm

It's important to understand that trademarks are identifiers of source. So "first use" means the first time you used the mark to identify your product. Maybe that's a sale, maybe it's using your logo to advertise your goods at a trade show, maybe it's sending out flyers with pictures of your product bearing your mark. First use in commerce means the first time that your use touched interstate commerce, which includes (coincidentally) U.S.P.S mailings. So just displaying an advertisement at a local booth may not qualify, even if tens of thousands of people attend, but mailing out a few hundred flyers might qualify if you send them by U.S. mail.

Attorney Butterman has given you a great long answer. I will try to be more succinct and pragmatic for better clarity. First, I take it that you are asking because you have no attorney and self-filed an ITU app. & just got a Notice of Allowance giving you six month to file a Dec. of Use and you are wondering how to fill in the dates. So with that in mind the short answers are: Q: 1. What is the Date of First Use of Mark in Commerce in my case? The date of filing intent to use with USPTO? 2. Or, the date I first use in interstate commerce or internationally? A: Neither. The "date of first use" or "date of first use anywhere" is the first time you affixed the mark to the goods (or packaging containing the goods) in the ordinary course of commerce, even if within your state. Note the wording in the online form adds "at least as early as", so the safe way and what almost everyone does is just use the same date for both, namely the date of first use in interstate commerce. Since the form says "at least as early as" you can always prove it was earlier (even before your filing date if that is the case) in litigation. Q: 3. What is “use”? The date of first sale? Or the date of first sample sent? Or the date of first advertisement? A: Normally, for trademarks (marks used on goods) it is the date you first transported goods bearing the mark in commerce. (whether paid or not) so long as it was for primarily for business purposes. So, you want to pick a date you can prove, and that means you want to use a date for which you have a shipping document or a date for which you have a customer acknowledgment of receipt. (I typically use the date of receipt, as then it is not open to challenge) and the shipping document should preferably have the trademark so there is no doubt that what was shipped did, in fact bear the trademark. Advertisement dates work for service marks but should not be used as dates of first use for trademarks because ads are not affixed to the goods and thus leave room for attack in litigation. For service marks (marks used on services), advertisement dates are acceptable because that is how service marks are normally used. Since there are normally no goods being transported, ads are how the trademark is "associated or affixed" to the services. Q:4. The date must be after the date of filing intent to use, right? A: No, but that is the smarter date to use since making it earlier makes the dates suspicious and thus opens them up to question because it would be expected that a use (1a) application would have been filed if that was the case. Since the dates in the online form are automatically prefaced by "at least as early as" there is no need to state a date earlier than the filing date, even if that is the case, since in litigation you can prove an early date due to the "at least as early as" language automatically added.