In order for a trademark to be registered, the applicant must be using the mark in commerce on the goods and services listed in the application. We are often asked what use is, and whether the applicant can print some business cards or sell one item to someone they know and satisfy the requirement. Unfortunately, these tactics will not work. The United States no longer recognizes “token use,” a one-time use made solely to comply with the use requirement.
“Use” means actual commercial use ( actual sale, offer for sale, rent or distribution) in interstate commerce of the trademark on, or in connection with, all of the specific goods or services listed in the application in the normal course of business.. Commercial use can be either interstate (between two or more states) or international (between the United States and one or more other countries). Interstate commerce generally involves a common carrier to deliver the product or telecommunications to place the order.
There are a few cases where use in one state may qualify for interstate commerce because the consumers themselves are frequently from out of state:
- Internet use
- Retail stores (and their goods) located in airports or on cruise ships
What does not qualify?
- International commerce that doesn’t include the United States
- Use of the mark on any goods or services not listed in the application
In your application, you listed goods and services you intended to use the mark in association with. Often, you listed more products than you initially launch. The mark must be in commercial use on all goods or services listed in the application. If it’s not, you can delete the goods and services that are not currently for sale and file a divisional application on the others.
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. First use in commerce means the first date the mark was commercially used in interstate or international commerce. Those two dates can be different or the same.
“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. In other words, the mark must be used as a source identifier, as your brand. 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.