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When pursuing federal trademark protection with the United States Patent and Trademark Office (USPTO), providing the date of first use "in commerce" is a critical step.
But in the digital age, where business operations often extend to the online realm, determining what constitutes "use in commerce" can be confusing. In this article, we break down the intricacies of this crucial requirement and offer clarity on what it means to use your mark "in commerce."
Some trademarks are more recognizable than others!
Before delving into the complexities of "use in commerce," let's revisit the fundamental concept of trademarks.
A trademark, whether a word, phrase, or design, serves as a symbol that informs consumers about the source of goods and services.
Let's look at how trademark law defines use in commerce:
The Lanham Act, also known as the Trademark Act, defines "use in commerce" as:
The bona fide use of a mark in the ordinary course of trade, not merely to reserve rights in a mark. It outlines that a mark is considered in use in commerce when:
You may now be wondering what other examples there may be for use in commerce, well consider the following:
At its core, "use in commerce" necessitates two main criteria:
The difference between these two trademark concepts is timing.
"Intent to Use" signifies a future intention to use a trademark, while "Use in Commerce" indicates the current, real-world use of a trademark.
Businesses often begin with "Intent to Use" to secure rights for a brand they plan to launch, and eventually transition to "Use in Commerce" when the trademark is actively in commercial use. This distinction is vital in the process of trademark registration and protection.
The assessment of whether an action qualifies as "in commerce" is often subject to varying interpretations.
Generally, if goods cross state lines or international borders or if services cater to customers who cross state lines or international boundaries, it meets the requirement. Nevertheless, the law often dwells in gray areas, and the specific circumstances of your case may require a more nuanced evaluation.
Given the intricacies and potential ambiguities, seeking advice from a trademark lawyer is highly advisable. An attorney can offer guidance on how best to proceed in your unique situation. They can help you establish a solid foundation for your trademark registration. This reduces the risk of opposition or registration cancellation due to inaccuracies.
"Use in commerce" is a pivotal aspect of trademark law that a trademark applicant must carefully consider. To ensure that you provide accurate information to the USPTO and safeguard your brand's rights, it's essential to understand and meet this requirement.
As a trademark owner, if you find yourself in doubt regarding your specific circumstances:
Getting in touch with one of our trademark attorneys is the wisest course of action to navigate this complex terrain effectively.
Trademark use in commerce" signifies using the trademark to sell or distribute goods or services across state lines in the US. This establishes its market presence and eligibility for trademark protection.
Yes, you can apply for a trademark after using it in commerce. There are two application types: Section 1(a) for current use and Section 1(b) for future use intentions.
Proving first use in commerce entails providing evidence like invoices, labels, or advertising materials. These demonstrate the initial commercial use of your trademark.
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Joshua J. Brouard brings a rich and varied background to his writing endeavors. With a bachelor of commerce degree and a major in law, he possesses an affinity for tackling business-related challenges. His first writing position at a startup proved instrumental in cultivating his robust business acumen, given his integral role in steering the company's expansion. Complementing this is his extensive track record of producing content across diverse domains for various digital marketing agencies.
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