Use in Commerce Requirements

Except in limited circumstances, an applicant must be using a mark in commerce that can be regulated by US Congress for a registration to issue. The applicant typically must provide at least one specimen of use for each trademark class applied for and sign a declaration attesting to the mark being in use for all of the goods/services listed in the application. 

What is “Use in Commerce?”

The term “use in commerce” means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark.  A mark shall be deemed to be in use in commerce

(1) on goods when —

(A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and

(B) the goods are sold or transported in commerce, and

(2) on services when —

(A) it is used or displayed in the sale or advertising of services; and

(B) and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services.

Types of Commerce

The scope of federal trademark jurisdiction is commerce that may be regulated by the U.S. Congress. The types of commerce encompassed in this definition are interstate, territorial, and between the United States and a foreign country.

Interstate Commerce

Intrastate use of a mark may qualify as use in commerce within the meaning of the Act if the intrastate use is of a type that would, taken in the aggregate, have a direct effect on interstate commerce.  

Territorial Commerce

“Territorial commerce” is commerce within a territory of the United States (e.g., Guam, Puerto Rico, American Samoa, or the U.S. Virgin Islands) or between the United States and a territory of the United States.

Between the USA and a Foreign Country

The term “foreign” is not acceptable to specify the type of commerce in which a mark is used, because it does not clearly indicate that the mark is in use in a type of commerce that the U.S. Congress can lawfully regulate.  Unless the “foreign commerce” involves the United States, Congress does not have the power to regulate it.  Use of a mark in a foreign country does not give rise to rights in the United States if the goods or services are not sold or rendered in the United States.