The Meaning of “Use,” and Proving it to Get Federal Registration

by Carlton Fields

[author: Jill Sarnoff Riola]

When you file an application to register a trademark (or service mark) in the United States Patent and Trademark Office, you must show you’re actually using the mark “in commerce” on the specific goods or services listed in the application before the actual registration will issue. You can file the application before you use the mark, but you won’t get your registration until you do.

What is “Use”?

“Use” means actual commercial use in interstate or international commerce of the trademark on, or in connection with, all of the specific goods or services listed in the application.

  • Commercial use is the actual sale or offer for sale (or rent) or distribution of all of the specific goods or services listed in the application in the normal course of business. The United States no longer recognizes “token use,” a one-time use made solely to comply with the use requirement.
  • Commercial use can be either interstate (between two or more states) or international (between the United States and one or more other countries). International commerce that doesn’t include the United States will not qualify. 
  • Use of the mark on any goods or services not listed in the application will not qualify.
  • The mark must be in commercial use on all goods or services listed in the application. If it’s not, you can delete the “non-use” goods (you can’t add them, though), you can split the application and get a registration only for the “use” goods, or get an extension of time to file proof of use. 
  • With the following exceptions for situations where the consumers themselves are frequently from out of state, use in just one state does not qualify:
    • Internet use (goods are purchased through the website or the services are described on the site)
    • Restaurants
    • Retail stores (and their goods) located in airports or on cruise ships

What Must be Shown to Prove Use?

“Proof of Use” means some tangible means of showing that the mark is being used as a trademark or service mark on or with the specific goods or services listed in the application. Even though the mark must be in use on all of the goods or services listed in the application, you only need to provide proof of use for one of the items listed, not all of them. The USPTO requires a declaration verifying use on all the goods, but only requires one specimen of use.

Acceptable specimens of use always have the mark on them and clearly relate to the specific goods or services listed in the application.

  • Acceptable specimens of use for goods
    Packaging for the goods
    Labels on the goods
    Hang tags on the goods
    Web page showing the mark and the goods, where consumer can purchase the goods on the website
    POP materials
  • Acceptable specimens of use for services
    Advertising or promotional materials that clearly reference the services
    Business cards/stationery (as long as it references the services)
    Web page that clearly shows the mark and describes the services
  • Not Acceptable
    Use only as a trade name in an address
    Use only in the domain name of a website
    Use on any services other than as listed in the application
    Use that doesn’t clearly relate to or reference the specific services in the application

What is “First Use”?

There are two types of First Use: (1) anywhere; and, (2) interstate/international commerce.

First use anywhere means the first date the mark was commercially used on any one of the goods or services listed in the application even if it wasn’t in interstate or international commerce. For example, the first use anywhere can be a local sale between parties in Orlando and Tampa.

First use in commerce means the first date the mark was commercially used in interstate or international commerce, for example, a sale between parties in Miami and Atlanta.

Those two dates can be different or the same.

  • If the first use was on January 1, between parties in Orlando and Tampa (intrastate), and then on April 1 between parties in Orlando and Atlanta (interstate), first use anywhere is January 1, and first use in commerce is April 1. 
  • If the first use was March 1 between parties in Orlando and Atlanta, then both the first use anywhere and first use in commerce are March 1.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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