What is “Use in Commerce” for Trademarks in the US

If you’ve ever wondered about the phrase “use in commerce” when registering a trademark, you’re not alone. It’s an important Use in commerce is genuine use of a trademark in the ordinary course of trade in commerce that Congress can regulate. It connects the mark with actual goods or services, rather than a business idea or plans for a future launch.

Use for goods

The mark must identify the goods through an acceptable placement or display, and the goods must be sold or transported in qualifying commerce. Evidence may show the mark on the goods, appropriate labels or packaging, or a qualifying point-of-sale display. Advertising alone generally does not establish use for goods.

Use for services

The mark must be used or displayed in selling or advertising the services, and the services must actually be rendered in qualifying commerce. A website advertising services that have not yet been provided is insufficient. The evidence must directly associate the mark with the identified services.

Does the business need to operate in several states

Not always. Activities within one state can qualify where they affect interstate, territorial or US foreign commerce. A local business is not automatically excluded because it does not ship products across state borders. The particular facts and industry matter.

Genuine use and token transactions

A transaction arranged solely to reserve trademark rights is insufficient. There is no universal minimum number of sales that determines qualifying use. A single genuine transaction is not automatically token use; the circumstances and ordinary practices of the industry must be considered.

Filing before use begins

A Section 1(b) application can be filed with a bona fide intention to use the mark, with an acceptable allegation of use required before registration. Section 44(e) and Madrid Section 66(a) applications may register without pre-registration specimens, subject to their other requirements. A Section 1(a) application requires qualifying use at filing.

Proving use and maintaining registration

Specimens must show actual trademark use with the relevant goods or services. Webpage specimens require the URL and access or print date in the submission. Although one acceptable specimen per class is generally sufficient initially, each retained good or service must meet the applicable use requirement.

After registration, mandatory Section 8 or 71 declarations confirm use or qualifying excusable nonuse. Identify unused items before filing to avoid unnecessary deletion fees. Contact Trademark Angel if you need help assessing your use or evidence.