What is Use in Commerce?
For the purpose of obtaining federal registration, “commerce” means all commerce that the U.S. Congress may lawfully regulate; for example, interstate commerce or commerce between the U.S. and another country. For goods, “Interstate commerce” involves sending the goods across state lines with the mark displayed on the goods or the packaging for the goods. With services, “interstate commerce” involves offering a service to those in another state or rendering a service, which affects interstate commerce (e.g. restaurants, gas stations, hotels, etc.). “Use in commerce” must be a bona fide use of the mark in the ordinary course of trade, and not use simply made to reserve rights in the mark. Generally, acceptable use is as follows: For goods: the mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce. For services: the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in commerce. If you have already started using the mark in commerce, you may file based on that use. A “use” based application must include a sworn statement (usually in the form of a declaration) that the mark is in use in commerce, listing the date of first use of the mark anywhere and the date of first use of the mark in commerce.
