Claiming foreign priority under Section 44(d) applies if an eligible applicant files the U.S. application claiming §44(d) priority within six months of filing the first application to register the mark, the filing date of the first-filed foreign application is the effective filing date of the U.S. application.

The priority filing date also constitutes a constructive date of first use in the United States, if the application matures into a registration. Therefore, the priority date cannot be later than the filing date of the U.S. application.

Section 44(d) of the Trademark Act provides only a basis for receipt of a priority filing date, not a basis for publication or registration. In a §44(d) application, both the actual date the application was received in the USPTO and the priority date will appear in the Trademark database.

Section 44(d) of the Act provides a basis for receipt of a priority filing date, but not a basis for publication or registration.  Before an application may be approved for publication, or allowed for registration on the Supplemental Register, the applicant must establish a basis for registration under §1(a), §1(b), or §44(e) of the Act.

An applicant may claim more than one basis for registration (i.e., §44(e) in addition to §1(a) or §1(b)). If the applicant claims a §1(b) basis, the applicant must file an allegation of use (i.e., either an amendment to allege use). A §44(d) applicant may not assert a basis under §66(a) of the Trademark Act, based on an extension of protection of an international registration to the United States.

To determine priority for publication, an application filed in the United States under §44(d) will be treated as if it were filed in the United States on the same date as the filing in the foreign country.  The §44(d) application will receive priority over any application filed after the §44(d) applicant’s priority filing date that might otherwise be a possible bar to registration under §2(d) of the Trademark Act due to a likelihood of confusion.

An applicant may also claim priority under §44(d) based upon a foreign application, and proceed to registration under §44(e) based upon a different foreign registration.  Both foreign countries must be parties to a treaty or agreement with the United States and the foreign registration must be from a country of origin of the applicant.  If the applicant amends an application to rely on a different foreign registration, this is not considered a change in basis, but may require republication.