Key points
- Section 44(d): claim the filing date of a foreign application if you file in the U.S. within six months.
- Section 44(e): base a U.S. application on a registration from your country of origin, in some cases registering before you use the mark in the U.S.
- Both still require a bona fide intent to use the mark in U.S. commerce, and a foreign-domiciled applicant still needs a U.S.-licensed attorney.
What Section 44 is
Section 44 of the Lanham Act, the U.S. federal trademark law, puts into effect U.S. treaty obligations, including the Paris Convention. It lets applicants from treaty countries use their home-country trademark filings in the United States. It is filed directly with the USPTO, unlike a Madrid Protocol designation.
Section 44(d): priority from a foreign application
If you file a U.S. application within six months of your first application for the same mark in a treaty country, you can claim that earlier foreign filing date as your U.S. priority date. Anyone who files or begins using a similar mark in the U.S. in the meantime will generally rank behind you.
- The goods and services can't go beyond those in the foreign application.
- A 44(d) claim gives you a priority date but isn't a basis for registration on its own. The application also needs a second basis: Section 44(e) once the foreign registration issues, or use or intent to use in the U.S.
- The USPTO will often suspend the U.S. application while it waits for the foreign registration.
Section 44(e): a foreign registration as the basis
Under Section 44(e), you can register in the U.S. based on a registration from your country of origin. That's a treaty country where you have a real and effective business, or failing that, where you're domiciled or a national.
- You'll need a copy or certification of the foreign registration, with an English translation if needed, and it must be in force.
- You don't need to show use in the U.S. before registration, but you must have a bona fide intent to use the mark in U.S. commerce.
- Once issued, the U.S. registration is independent of the foreign one.
Combining 44(d) and 44(e)
A common strategy is to file in the U.S. within six months of your home application, claiming 44(d) priority, and then rely on 44(e) once the home registration issues. You lock in the earliest possible U.S. date and still register without first proving U.S. use.
Section 44 vs. the Madrid Protocol
Both use your home-country filing, but a Section 44 application is a U.S. national application. It doesn't depend on your home registration once the U.S. registration issues, its goods and services can be written for U.S. standards, and it can be amended to another basis if needed. See Madrid Protocol vs. Direct USPTO Filing for the full comparison.
Use still matters
A 44(e) registration doesn't need U.S. use to issue, but it can't be kept without it. A declaration of use in U.S. commerce (Section 8) is due between the fifth and sixth years after registration. A registration that isn't used can also be challenged for non-use or abandonment.
How we help
We confirm whether your home filing qualifies, track the six-month priority deadline, write a U.S.-ready description of goods and services, and file and prosecute the application as your U.S. attorney of record. We do not advise on your home country's law; we coordinate with your local counsel where needed.
This guide is general information about U.S. trademark law, not legal advice, and reading it does not create an attorney-client relationship. Rules and fees change; contact us about your specific situation. We do not advise on foreign law.