The date of first use in commerce is the date when the goods were first sold or transported under the mark in a type of commerce. It can also be the date when the services were first rendered, under the mark in a type of commerce. The commerce should be lawfully regulated by Congress, and the use should be bona fide and in the ordinary course of trade.
To secure a date of first use in commerce the trademark owner should use the mark in trade in a manner that allows consumers to rely on it to identify and discriminate between the user’s goods or services from those of competitors’. Since the authority for the Trademark Act is based on the interstate commerce clause, the user must also demonstrate use in interstate commerce to obtain a federal registration. The interstate commerce requirement is met when use of the mark in trade includes activity that either crosses state lines or affects interstate commerce directly or indirectly such as by selling products or services to interstate travelers.
Pursuant to 37 CFR 2.20, a date of first use in commerce is not required to receive a filing date in an application based on use in commerce. If the application does not include a date of first use in commerce, the examining attorney will require that the applicant state the date of first use in commerce, supported by an affidavit or declaration.