use” date of first use is the date that the trademark application was filed. See 2 McCarthy, supra, § 16:16; see also CreAgri, Inc. v. USANA Health Sciences, Inc., 474 F.3d 626, 629 (9th Cir.2007) ("Under 15 U.S.C. §§ 1051(b), 1051(d), and 1057(c), as long as an applicant’s mark is eventually granted registration on the principal register, and as long as the applicant does, in fact, use the mark in commerce within a set period of time thereafter, the filing of an intent to use application constitutes 'constructive use of the mark, conferring a right of priority, nationwide in effect’ "). 37 . Memorandum in Opposition to Plaintiff's Application for a Preliminary Injunction at 5-6. 38 . But see Lucent Info. Management, Inc. v. Lucent Techs., Inc., 186 F.3d 311 (3d Cir. 1999) (<HOLDING>). McCarthy explains that the Lucent decision
holding that plaintiffs sales presentations and single sale prior to defendants intenttouse trademark filing were insufficient to establish priority holding that the filing of notice without motion is insufficient holding that the fact that defendants sales in forum were less than 5 percent of its total sales volume was irrelevant so long as its sales were part of a regular course of dealing and were not isolated or exceptional events holding that exercising general jurisdiction over defendant was improper where its actual sales in florida were a small percentage of the total sales and therefore these sales were de minimis  holding that the defendants reference to the plaintiffs trademark in the metatags of the defendants web page was a violation of trademark law