Does a trademark have to be used in commerce [New Info]

Last updated : Aug 14, 2022

How do I prove a trademark in commerce?

1. Photographs that show the mark on a tag or label affixed to the goods.
2. Hangtags or labels with the mark and the generic name of the actual goods on the tag or label and informational matter that typically appears on a tag or label in use in commerce for these types of goods.

Does a trademark need to be used in interstate commerce?

For a trademark to be registered at the federal or national level, it must be used in “interstate commerce.” For goods, “Interstate commerce” involves sending the goods across state lines with the mark displayed on the goods or the packaging for the goods.

Does a trademark need to be used?

By law, you need not request permission to use a trademark belonging to another if it is for an editorial or informational use. Trademark law protects distinctive words, phrases, logos, symbols, slogans, and any other devices used to identify and distinguish products or services in the marketplace.

Can you register a trademark in the US without using the mark in interstate commerce?

If you have not used your mark in commerce yet, but have a good faith intention to do so in the future, you can file an application to register your trademark or service mark with an intent-to-use (ITU) filing basis.

What is considered use in commerce?

Federal trademark law defines “use in commerce” as “the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark.” As a result, the trademark owner must show actual use of the mark, not token or sham use of it.

What constitutes commercial use of a trademark?

Per Trademark Federal Statutes and Rules (July 2021), commercial use means a trademark is used in connection with a specific good or service (or groups of goods and services). Moreover, a business cannot obtain a trademark as a placeholder for a business that has yet to operate in the stream of commerce.

How do you prove a trademark is first used?

Your Domain. If you publish a website and own a domain name, this can serve as proof of your first use of your trademark. The trademark must appear on or near the products you sell. Because domain names list a date they were put into use, this supports your claim to your trademark.

Does using a mark on the Internet satisfy the use in commerce requirement?

Offering services via the Internet has been held to constitute use in commerce because the services are made available to consumers on a national or international level. An applicant is not required to specify the type of commerce in which the trademark is used in its application.

What does interstate commerce mean?

Interstate commerce is the general term for transacting or transportation of products, services, or money across state borders.

Can I put a Nike logo on a shirt for personal use?

In fact, copyright and trademark violations can in some cases lead to criminal charges. Selling shirts with copyrighted images isn't impossible, but you should never use someone else's logos on your T-shirts or other clothing without their explicit permission.

Can you use a trademarked name in a different industry?

If you began using the name before the other company registered it, you will be able to continue using it. However, you will only be able to use it in the market in which you were using the mark when the other company registered the name.

Can I use TM symbol without registering?

Anyone can use a TM symbol regardless of whether they've successfully registered the trademark, or whether they've applied for a trademark at all. Even if the trademark application is rejected, the owner can continue to use the TM symbol.

What is the difference between a state trademark and federal trademark?

State trademarks protect a mark only in the registered state(s), meanwhile a federal trademark protects the mark(s) nationwide and potentially can be used to obtain international trademarks through the WIPO World Intellectual Property Organization.

Should I trademark state or federal?

If a federal registration is obtained before the use of a similar mark in a state, the federal registration has priority over the state registration. If there is any conflict between a federal and state trademark, the Court will most likely rule in favor of the federal registration.

Does use in commerce require a sale?

TRADEMARK USE IN COMMERCE REQUIRES MEANINGFUL SALES A central requirement in trademark law is that Use of the Trademark must entail Bona Fide Sales of the Goods/Services; Bona Fide Sales, meaning, of course a substantial number of sales.

What is bonafide use of a trademark?

Meaning of Bonafide use In India, trademark law places restrictions on licensed applicants and makes it mandatory to use the logo with a good faith purpose in both industrial and commercial matters. The legislation protects the consumer by excluding the possibility of an unfair advantage.

Which of the following is not protected by trademark law?

Generic terms are not protected by trademark because they refer to a general class of products rather than indicating a unique source.

Can I trademark a name that is already in use but not trademarked?

If you're wondering, "can you trademark something that already exists," the simple answer is "no." Generally speaking, if somebody has used a trademark before you, you can't register the trademark for yourself.

Should you trademark your business name or logo first?

Which One Should I Trademark? It depends. Higher value tends to lie in name recognition rather than familiarity of a logo. Since logos change more often than names, it usually makes more sense to register a standard character mark to protect the business moniker itself.

Are trademarks first to file or first to use?

Trademark rights generally belong not to the first trademark filer, but the first user. In the US, trademark rights generally go to one who was first to use the mark in commerce, meaning that whoever was first to use a mark on certain goods or services would be presumed the lawful owner of the trademark.

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greetings from Toledo I'm David do the trademark wahoo this session involves applications for federal trademark registration that are based on a bona fide intention to use that trademark in commerce I have been at this long enough that when I started practicing a trademark application for federal registration could not be filed until the applicant had used the trademark on its products or in connection with its services and this was a bad system one problem was but any applicant would go through the process of picking a mark doing a conflict search and putting together a product for sale before it could apply to register the mark that was a big investment and an applicant in that system ran the risk of having registration refused but finding out oh I don't know six months from the date of adoption of the trademark that it would have to start over with a new mark another problem with that system was that it became common practice that people would select a trademark to the conflict search and then to show use in commerce they would make up a label and put it on a product and ship it to Aunt Sally in Minnesota and now we have used the trademark and were eligible to make our application for federal trademark registration it was 1991 when the rule was changed the statute was changed and it became possible to make an application for federal registration based on a bona fide intention to use that trademark registration process could not be completed until the mark was in use and in the case of an intent to use application the applicant would have to then file a statement of use declaring that the mark was in use and pay another fee and well submit a specimen of you something showing how the applicant was using the mark so there as a risen a problem with intent to use applications and that has to do with the question of whether or not somebody really has a bona fide intention to use a trademark if trademark comes to mind and on a whim you make an application for federal trademark registration for I don't know say dear you don't know the first thing about beer you don't have a business plan you don't have any proof or evidence that you have taken any step to put into use that trademark and the trademark trial and appeal board has looked at many cases since it became possible to file and intent to use application in specifically cases involving the question of did the applicant have a bona fide intention to use the mark and in several cases the applicant lost because the applicant could not establish that it had a bona fide intention to use a trademark the takeaway here is that it's good to select the mark to your conflict search but before the day that you file the trademark application you should be able to prove some step towards using that trademark on your product or in connection with your services and you should hold on to that proof in case your bona fide intent is ever questioned that's it for now but please remember you will do better in Toledo

Thanks for your comment Leslie Alf, have a nice day.
- Buster Hoistion, Staff Member

hi I'm u.s. trademark attorney Morris Turek today I'm going to talk to you about the concept of use in commerce as it relates to trademark law the concept of use in commerce is vitally important in u.s. trademark law especially with regard to federal trademark registration needless to say the definition of use in commerce is something all trademark applicants should be aware of as you may know there are essentially two ways in which to register a trademark the first is to file your trademark application on an in use basis this means that your trademark is already being used in commerce in a connection with the advertising and sale of the products or services were cited in your trademark application if your trademark is not yet in use in commerce then you have the option of filing your trademark application on an intent to use basis this allows you to reserve the trademark while you're getting ready to provide your products or services later in the u.s. trademark registration process you'll need to file either an amendment to allege use or the statement of use which demonstrates to the United States Patent and Trademark Office that you're actually using your trademark in commerce now I could sit here and give you the technical definition of use in commerce that you'd find if you went digging through the trademark federal statutes and rules but I want to make this as easy for you to understand as possible because if you file an in use trademark application or the statement of use before your trademark meets the use and commerce standards then your trademark application will be void in any resulting registration will be vulnerable to potential trademark cancellation I don't want that unfortunate situation to happen to you regardless of whether your trademark is for products or for services the use in commerce must be genuine and real this means that the use isn't merely made for the purpose of filing and in use trademark application and amendment to allege use or the statement of use so for its instance let's say you want to register a trademark for clothing items just printing a couple of tea shirts with the trademark on them and giving them to your two best friends wouldn't be sufficient to file an in use trademark application and amendment to alleged use or the statement of use similarly let's say you want to register a trademark for home remodeling services just quickly handing your sister a business card with your trademark printed on it before you start remodeling her kitchen wouldn't likely be considered use in Congress either both of these examples just don't seem like real genuine legitimate ongoing commerce do that now that you know that using Commerce can't just be for the purpose of submitting a trademark application and amendment to alleged use or the statement of use we need to turn to how the trademark must be used in order to meet the use in commerce threshold if your trademark application is for products your trademark will be considered to be in use in commerce when one your mark is placed on the products on product packaging on labels or tags affixed to the products or on documents distributed with the products such as user guides instructional manuals and invoices and to the products have actually been sold or transported within the United States or within one of its territories this means that simply taking orders for a product isn't using Commerce advertising a product that's not yet available isn't using Commerce putting a photo of the product on your website without any means of ordering it isn't using Commerce and only distributing a product outside of the United States isn't using Commerce now if your trademark application is for services your trademark will be deemed to be in use and commerce when one your mark is used in advertisements marketing brochures Flyers radio ads television commercials or on websites that promote the services were cited in the trademark application and to the services have actually been rendered the united states war within one of its territories this means that advertising and marketing of the services isn't using commerce by itself you must have also rendered or provided the services listed in the application sometimes it can be difficult to ascertain whether the use of your trademark meets the threshold of use in commerce if there's any doubt whatsoever it's much better and safer to file an intent to use trademark application in addition you should file a request for an extension of time if you don't have use of your trademark by the statement of use deadline this will help to ensure that your trademark application and any resulting registration is rock-solid and can be enforced in a court of law if necessary again i'm u.s. trademark attorney Morris Turek if you have any questions about the definition of use in commerce please don't hesitate to contact me I look forward to hearing from you soon you

Thanks RobeniD your participation is very much appreciated
- Buster Hoistion

About the author

Buster Hoistion

I've studied meta-ethics at Arizona State University in Tempe and I am an expert in biomechanics. I usually feel cheerful. My previous job was industrial arts teacher I held this position for 19 years, I love talking about drama and sunbathing. Huge fan of Adam Brody I practice fishing and collect film posters.