[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR2.76]

[Page 290-291]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
  CHAPTER I--UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF 
                                COMMERCE
 
PART 2--RULES OF PRACTICE IN TRADEMARK CASES--Table of Contents
 
Sec. 2.76  Amendment to allege use.

    (a) An application under section 1(b) of the Act may be amended to 
allege use of the mark in commerce under section 1(c) of the Act at any 
time between the filing of the application and the date the examiner 
approves the mark for publication. Thereafter, an allegation of use may 
be submitted only as a statement of use under Sec. 2.88 after the 
issuance of a notice of allowance under section 13(b)(2) of the Act. If 
an amendment to allege use is filed outside the time period specified in 
this paragraph, it will be returned to the applicant.
    (b) A complete amendment to allege use must include:
    (1) A statement that is signed and verified (sworn to) or supported 
by a declaration under Sec. 2.20 by a person properly authorized to sign 
on behalf of the applicant (see Sec. 2.33(a)) that:
    (i) The applicant believes it is the owner of the mark; and
    (ii) The mark is in use in commerce, specifying the date of the 
applicant's first use of the mark and first use of the mark in commerce, 
and those goods or services specified in the application on or in 
connection with which the applicant uses the mark in commerce.
    (2) One specimen of the mark as actually used in commerce. See Sec. 
2.56 for the requirements for specimens; and
    (3) The fee per class required by Sec. 2.6.
    (c) An amendment to allege use may be filed only when the applicant 
has made use of the mark in commerce on or in connection with all of the 
goods or services, as specified in the application, for which applicant 
will seek registration in that application unless the amendment to 
allege use is accompanied by a request in accordance with Sec. 2.87 to 
divide out from the application the goods or services to which the 
amendment pertains. If more than one item of goods or services is 
specified in the amendment to allege use, the dates of use required in 
paragraph (b)(1) of this section need be for only one of the items 
specified in each class, provided the particular item to which the dates 
apply is designated.
    (d) The title ``Amendment to allege use under Sec. 2.76'' should 
appear at the top of the first page of the paper.
    (e) The Office will review a timely filed amendment to allege use to 
determine whether it meets the following minimum requirements:
    (1) The fee prescribed in Sec. 2.6;
    (2) One specimen or facsimile of the mark as used in commerce; and
    (3) A statement that is signed and verified (sworn to) or supported 
by a declaration under Sec. 2.20 by a person properly authorized to sign 
on behalf of the applicant that the mark is in use in commerce.
    (f) A timely filed amendment to allege use which meets the minimum 
requirements specified in paragraph (e) of this section will be examined 
in accordance with Sec.Sec. 2.61 through 2.69. If, as a result of the 
examination of the amendment to allege use, applicant is found not 
entitled to registration for any reason not previously stated, applicant 
will be so notified and advised of the reasons and of any formal 
requirements or refusals. The notification shall restate or incorporate 
by reference all unresolved refusals or requirements previously stated. 
The amendment to allege use may be

[[Page 291]]

amended in accordance with Sec.Sec. 2.59 and 2.71 through 2.75. If the 
amendment to allege use is acceptable in all respects, the applicant 
will be notified of its acceptance. The filing of such an amendment 
shall not constitute a response to any outstanding action by the 
Trademark Examining Attorney.
    (g) If the amendment to allege use is filed within the permitted 
time period but does not meet the minimum requirements specified in 
paragraph (e) of this section, applicant will be notified of the 
deficiency. The deficiency may be corrected provided the mark has not 
been approved for publication. If an acceptable amendment to correct the 
deficiency is not filed prior to approval of the mark for publication, 
the amendment will not be examined.
    (h) An amendment to allege use may be withdrawn for any reason prior 
to approval of a mark for publication.
    (i) If the applicant does not file the amendment to allege use 
within a reasonable time after it is signed, the Office may require a 
substitute verification or declaration under Sec. 2.20 stating that the 
mark is still in use in commerce.
    (j) For the requirements for a multiple class application, see Sec. 
2.86.

[54 FR 37593, Sept. 11, 1989, as amended at 63 FR 48097, Sept. 9, 1998; 
64 FR 48922, Sept. 8, 1999; 64 FR 51245, Sept. 22, 1999]