One of the fundamental requirements for federal trademark registration in the United States is demonstrating “use in commerce.” Without a proper showing of use, a trademark will not register. Understanding this concept is crucial when filing a trademark application. 

What Does “Use in Commerce” Mean?

Under U.S. trademark law, “use in commerce” refers to the bona fide use of a trademark in the ordinary course of trade, not merely to reserve rights in the mark. The commerce must be lawful commerce that Congress may regulate. In a majority of cases, this means interstate commerce, or commerce across state lines.

The key is that a trademark must be used in connection with the actual sale or transport of goods, or the rendering of services, in a way that identifies and distinguishes the products or services from others in the marketplace.

There are slightly different standards for showing use in relation to goods and services.

Demonstrating Use For Goods

When dealing with goods/physical products, showing use in commerce is often straightforward but requires specific documentation:

• Marks on the Goods: Showing examples of a trademark directly on the goods themselves—printed, stamped, sewn, or otherwise affixed may be an acceptable way to demonstrate use. A trademark on a perfume bottle or the Apple logo displayed on a phone are two examples of this.
• Marks on Packaging or Labels: If applying the mark directly to goods isn’t practical, displaying it prominently on packaging, labels, or tags works equally well. This includes everything from cereal boxes to clothing hang tags.
• Display of Marks at Point of Sale: For goods sold in retail environments, displaying a trademark on store signage, shelf displays, or other materials at the point of sale can demonstrate use in commerce. Selling products online at websites like Amazon or a business’s own website can work as well. For online sales, screenshots of a website that show the trademark is visible to customers at the point of sale can work well.
• Documentation Requirements: Trademark owners must provide specimens demonstrating how the mark appears in connection with the sale of their goods. While evidence of actual sales, such as invoices, receipts, and shipping records, is not typically required, it is important to maintain these records in case they are ever needed.

Demonstrating Use for Services

The requirements for demonstrating use in commerce for services are slightly different, since trademarks cannot be displayed directly on intangible services:

• Advertising Materials: Brochures, websites, and other promotional materials that advertise the services under the trademark can serve as valid specimens, provided they clearly identify the services being offered.
• Signage: Physical signs at a business location or other displayed materials that identify the services to customers may demonstrate use in commerce.
• Online Presence: Websites, social media profiles, and online advertising that promote the services under the trademark may work well to demonstrate use of the mark in commerce.
• Documentation Requirements: Similar to demonstrating use in relation to goods, trademark owners must provide specimens demonstrating how the mark appears in connection with the provision of services. While evidence of actual sales, such as invoices and service contracts, is not typically required, it is important to maintain these records in case they are ever needed.

Important Takeaways

• Along with examples of use of a mark in commerce, trademark owners must also submit the earliest date of use of the mark in commerce. This date is the earliest that goods were sold or services were provided to a customer across state lines. 
• There must be a bona fide use of the mark in commerce. For example, selling goods to a family or friend solely for the purpose of securing trademark rights is a token use and would not be considered a bona fide use.
• Maintaining records of trademark use is important. If there is ever a challenge to the validity of the trademark use or the earliest date of use, these records can help ensure trademark rights are protected. 

When seeking federal trademark registration, business owners should consult with experienced IP counsel to ensure that there is sufficient qualifying trademark use in commerce to protect and maintain trademark rights.