If you’ve ever wondered about the phrase “use in commerce” when registering a trademark, you’re not alone. It’s an important concept in U.S. trademark law, but it doesn’t have to be confusing. Let’s break it down in a way that’s easy to understand.

What Is “Use in Commerce”?

In simple terms, “use in commerce” means using your trademark in actual business activities, especially ones that cross state or national borders. For a trademark to qualify for federal protection, it must be tied to goods or services that are sold or advertised across state lines or internationally.

Think of it like this: owning a trademark isn’t just about coming up with a cool name or logo. You have to use it in real business transactions.

Why Is “Use in Commerce” Necessary?

The U.S. trademark system is built on the principle that trademarks should represent real businesses actively serving customers. This ensures fairness by preventing people from registering trademarks they don’t intend to use. It also helps businesses protect their brands in competitive markets.

What Counts as “Use in Commerce”?

There are different ways to meet the “use in commerce” requirement depending on whether your business sells goods or provides services. Here’s how it works:

1. For Goods (Products):
   -Your trademark must appear on the product itself, its packaging, or its label.
   -The product must be sold or transported in a way that impacts interstate commerce. For example, shipping your branded candles to customers in another state qualifies.
2. For Services:
   Your trademark should be visible in ads, websites, or other promotional materials that customers see.
   The service must reach customers in more than one state or otherwise affect interstate trade. For instance, offering online tutoring to students across the U.S. counts.

Examples of “Use in Commerce”

Here are a few examples to make things clearer:

1. Product Example: A clothing brand sells T-shirts with its trademarked logo online and ships them to customers in different states. This qualifies as use in commerce.
2. Service Example: A marketing agency advertises its services on a website and works with businesses nationwide. This also meets the requirement.
3. Doesn’t Count: A bakery that only sells locally without advertising or shipping across state lines might not meet the federal standard.

What About “Intent to Use”?

If you haven’t started using your trademark in commerce yet, you can file an Intent-to-Use (ITU) application. This lets you reserve the trademark while you prepare to launch your business. You’ll need to submit proof of actual use later to finalize your registration

How to Prove “Use in Commerce”

When you apply for a trademark, the U.S. Patent and Trademark Office (USPTO) will ask for proof of use. This proof is called a “specimen,” and it shows how your trademark is being used in the real world.

1. For Goods: A photo of your product with the trademark on the label or packaging works as evidence. For example, a bottle of shampoo with your brand name on the label would qualify.
2. For Services: Screenshots of your website or ads featuring your trademark and describing your services are acceptable. For instance, an ad showing your graphic design company’s logo and contact details would work.

Common Mistakes to Avoid

1. Token Sales: Making one sale just to meet the requirement isn’t enough. The USPTO looks for ongoing and genuine business activity.
2. Internal Use: Using a trademark only within your company (like on internal documents) doesn’t count.
3. Pre-Launch Use: Advertising or prototypes that don’t involve actual sales or services don’t qualify as use in commerce.

Why It Matters

Meeting the “use in commerce” requirement ensures that trademarks are given to businesses actively contributing to the marketplace. This protects both businesses and consumers by:

1. Strengthening your legal claim to the trademark.
2. Helping customers associate your brand with your products or services.
3. Preventing others from claiming rights to your brand.

Final Thoughts

“Use in commerce” is an essential step in registering a trademark, but it’s not as complex as it seems. As long as your business is actively selling goods or providing services across state lines or internationally, you’re likely meeting the requirement.

If you’re unsure about whether your trademark qualifies or need help navigating the application process, consulting a trademark professional can save you time and effort. Protecting your brand is an investment in your business’s future—and understanding “use in commerce” is the first step.

If you’re still unsure, feel free to reach out to us. We’ll help you navigate the trademark landscape and ensure your brand gets the protection it deserves.