Applications Based On Use in Commerce in the U.S.

Before a trademark can be placed on the Federal Register, the trademark must be used “in commerce” within the United States. What is required to meet the “in commerce” requirement is different for trademark applications that cover products compared to trademark applications that cover services.

When it comes to goods (physical products), if they have been sold or sent to a store for resale purchase, and if your mark is visible on their attached tags, labels or other packaging, then the trademark mark is being used in commerce.

Example 1: Jennifer’s hand crafted earrings were shipped in packaging that bore her trademark HEARING BONES for resale at a local department store.

Example 2: Carly developed a mobile application for coffee lovers, named COFFEE LOVE, and released it publicly for download on Apple iTunes and Google Play.

Example 3: Bob sent a dozen samples of his DEER IN A HEADLIGHT branded hunting caps that include an integrated head lamp to a local sporting goods store. The caps displayed the DEER IN A HEADLIGHT trademark on a label inside the cap. The sporting goods store will resell them.

To show that a trademark for a service is being used in commerce, it must be shown that the services are being marketed under the mark and that the services advertised can be delivered to customers.

Example 1: Michael started a local tech support service named ZEN-IT. As he was a computer tech by trade and planned to provide the service himself, the moment that he initially used the name to advertise ZEN-IT services on a small billboard in town, he put the mark into use.

Example 2: Mary started a daycare business named LITTLE PEOPLE’S PALACE. She set up her daycare’s location and prepared all of the resources that she would need to provide her services. The very first time that all of her resources were in place, and she started to advertise the services under the mark, she put the mark into use.

In the case of both goods and services, it is absolutely essential that you do not attempt to manufacture evidence in an attempt to make it appear that your goods or services are being used in commerce, when they really aren't. Such approach will result in an invalid registration that can not be enforced.

For an overview of this process, see the Section 1(a) Timeline for U.S. Applications based on use in commerce. 

 

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