In a statement of use or an amendment to allege use for a trademark, the date of first use anywhere and the date of first use in commerce must be specified. However, what do these dates represent?
In general, the date of first use anywhere and the date of first use in commerce represent the dates you first showed your trademark to your customers. For example, if you published a product page on your website, the day the page went public is the date of first use of your trademark anywhere and in commerce. That would be a conservative definition. However, its meaning is much broader than that, with a few nuances.
What is the date of first use in commerce?
The date of first use in commerce relates to the use of your trademark in specific channels of commerce. To understand the meaning, you must refresh your memory about the U.S. government. I know it sounds boring, but you need to learn it to understand the difference between the date of first use anywhere and the date of first use in commerce.
The phrase “in commerce” in the date of first use in commerce refers to the type of commerce the federal government can regulate. The only kind of commerce that the federal government can regulate is commerce or business between the states and between the United States and foreign governments. The federal government can’t regulate local commerce.
For example, suppose you ship your product from one state to another state. In that case, that is commerce that the federal government can regulate. As such, shipping your product between states is a use in commerce. In another example, if you post your product on a website, then such use is a use in commerce because the federal government regulates certain parts of the Internet.
What is the date of first use anywhere?
At first glance, it might appear that the date of first use in commerce is broadly defined. However, the date of first use anywhere is even broader. The date of first use anywhere represents use of your trademark to the public, even if such use didn’t travel through a channel of commerce that the federal government can regulate. As such, if you set up a lemonade stand and call it Mike’s Lemonade, such use is a date of first use anywhere but not in commerce.
Can the date of first use anywhere and the date of first use in commerce be the same?
Yes, the date of first use anywhere and the date of first use in commerce can be the same. Oftentimes, they are the same because when you use your trademark in commerce, such use also qualifies as a use of the mark anywhere.
Can the date of first use anywhere and the date of first use in commerce be different?
Yes, sometimes, the date of first use anywhere and the date of first use in commerce is different. For example, if you decided to take your lemonade stand nationwide, then the date you started offering your lemonade to others in different states would be your date of first use in commerce.
Can the date of first use in commerce be earlier than the date of first use anywhere?
No, the date of first use in commerce cannot be earlier than the date of first use anywhere. A use in commerce always qualifies as a use in commerce. However, a use anywhere does not always qualify as a use in commerce. As such, the date of first use anywhere can be earlier than the date of first use in commerce, but not the other way around.
What are the consequences if I get the dates of first use anywhere and in commerce wrong?
If you put down the wrong dates of first use anywhere and in commerce, it could affect the validity of your trademark registration. For example, suppose you indicated the date of first use earlier than the actual date of first use. When you get to litigation, the defendant will argue that you committed fraud upon the Trademark Office by doing so.
We know you didn’t lie to the Trademark Office, but the defendant will still make those arguments. To avoid such disputes and expense, it’s best to be conservative when you specify your dates of first use anywhere and in commerce. They don’t need to be accurate to the exact date of first use. However, you should try to figure out a conservative date on which you had used the mark in commerce. For example, if you know that the trademark was used in January of 2023, just put down January 31st, 2023. Alternatively, you can insert at least as early as January 31st, 2023.