Filing on a Foreign Application or Registration
Sections 44(d) and 44(e) let an applicant outside the United States build a U.S. filing on work already done at home. They do different jobs, and they are routinely confused: one is a priority claim, the other is a basis for registration.
Section 44(d): Foreign application priority
Claims the filing date of a qualifying foreign application, so the U.S. application is treated as filed on that earlier date.
Must generally be asserted within six months of the qualifying foreign application filing date.
USPTO source ↗Section 44(d) is a priority basis, not a basis for registration. The application still needs an appropriate registration basis (Section 44(e), or a use-based basis under Section 1) before it can register.
What to provide
- Foreign country, filing date, and application number
- Applicant name as it appears on the foreign application
- The mark as shown in the foreign application
- The goods and services covered
- Any earlier foreign application for the same mark and goods that could affect the claim
Section 44(e): Foreign registration
Supports U.S. registration on the basis of a registration issued by the applicant's country of origin, without requiring proof of U.S. use before registration.
No six-month window, but the registration must be in force and must be from the country of origin.
USPTO source ↗A foreign registration does not make U.S. registrability automatic. The mark is examined on U.S. standards, and the goods and services must be recast into acceptable U.S. identification language.
What to provide
- The official registration certificate or office-issued registration document, showing owner, mark, and goods and services
- Confirmation the registration remains in force
- A translation signed by the translator, if the document is not in English
- Confirmation the registration is from the applicant's country of origin
Identification language is where the avoidable money goes
Home-country identifications are often broader than the USPTO accepts, and translating them literally produces free-form wording rather than Trademark ID Manual wording. Free-form identifications currently carry a per-class USPTO surcharge, and it is avoidable only while the application is being drafted, not after it is filed.
If a six-month priority window is running, say so in the deadline field with its time zone.