Trademark Registration: What is Use In Commerce?

Updated: Feb 24

To register a trademark with the United States Patent and Trademark Office (USPTO) you must provide evidence of the trademark's use in interstate commerce. But, what is commerce and what's interstate commerce?


What is Use In Commerce:


Use in commerce varies based on whether you provide goods or services.


1. If You're Selling Goods: A mark is in use in commerce with goods when:


  • The mark is placed on the goods, packaging for the goods, or point-of-sale displays associated with the goods (including webpage displays), and

  • The goods are actually being sold or transported in commerce.


2. If You're Providing Services: A mark is in use in commerce with services when:


  • The mark is used in the sale, advertising, or rendering of the services, and

  • The services are actually being rendered in commerce.


Additionally, the use in commerce must be in the “ordinary course of trade,” and not just made solely to reserve rights in a trademark or service mark.


Types of Use In Commerce:


There are different ways in which Use In Commerce can occur. It can be:

  1. Intrastate: Commerce that occurs within one state.

  2. Interstate: Commerce that occurs between two or more states.

  3. Territorial: Commerce that occurs between the United States and a territory of the United States.

  4. Foreign Commerce: Commerce that occurs between the United States and a foreign country.

Use In Commerce: To Qualify for Trademark Registration


Commerce that is purely intrastate does not normally qualify for trademark registration unless it directly affects or impacts interstate, territorial, or foreign commerce. However, just because your use in commerce is intrastate, that doesn't mean your actions do not qualify as interstate commerce. Here's a few examples provided by the United States Patent and Trademark Office (USPTO):


  • Restaurant services provided at a single-location restaurant that serves interstate travelers

  • Billiard parlor services provided in one U.S. state and advertised in more than one U.S. state

  • Retail department store services provided in one U.S. state, credit cards issued and catalogs and advertisements mailed to out-of-state customers

  • Services offered through the internet, available nationally and internationally to individuals who use interstate telephone lines to access websites.


Thus, to successfully register your trademark you must established that:


  1. Your trademark has been placed on the packaging of your goods, or point-of-sale displays associated with the goods AND your goods are actually being sold; or

  2. Your trademark is used in the sale, advertising, or rendering of your services, and your services are actually being rendered.

PLUS

  1. Your goods and/or services are sold, used, or advertised outside of your home state.

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