You list your product on Shopify, Etsy, or your own WordPress site. Anyone with Wi‑Fi can click Buy Now. So, does that alone satisfy the “use in commerce” standard the USPTO requires for a federal trademark? The short answer: not quite.
What the USPTO really wants to see
For goods, the agency looks for actual sales or shipments that cross a state line while the mark appears on the product, its packaging, or a point‑of‑sale page. USPTO In other words, a real customer in another state (or country) must complete a purchase, and it is a good idea to keep proof, such as an order receipt plus a shipping label or a photo of the branded box ready to go.
“Open to Anyone” vs. “Proven Interstate Sale” Examples
- Open storefront, no orders yet: A website that merely could serve out‑of‑state buyers is still just advertising. The USPTO calls that “intrastate use,” which is fine for a state registration but not enough for a federal one.
- One bona fide out‑of‑state shipment: The moment you ship a single order out of state, or even send your product that is available for purchase across state lines (think à samples to an influencer), you have crossed the federal threshold.
What about services?
If you coach clients on Zoom or design logos for customers nationwide, simply offering those services online is not enough. You must also provide the services. Once the service is performed, and because the service itself takes place in interstate commerce, the USPTO treats the website and payment portal as evidence of “rendering services to out‑of‑state customers.”
Practical Tips For New Business Owners Seeking Trademark Protection
- Ship at least one order out of state before you file a used-based application. Keep the dated invoice and tracking receipt; they make perfect specimens.
- Screenshot your checkout page. Make sure the mark is visible near the purchase button and that shipping options include other states.
- Maintain records. The USPTO may ask for additional proof during examination. Save those first few interstate orders in a dedicated folder.
- Not ready to ship or provide your service yet? File an Intent‑to‑Use application to lock in priority while you ramp up. Once a sale happens, file your Statement of Use and you are good to go.
Bottom Line
An online store that is capable of nationwide sales does not automatically equal “use in commerce.” Be sure to ship the product across state lines first. That single act turns your virtual shelf into bona fide interstate commerce and clears the path for a federal trademark.
Have additional questions about timing your first filing or gathering the right evidence? Schedule a Discovery & Strategy Session and we will walk you through it step by step.
DISCLAIMER: This article is for informational purposes only and does not constitute legal advice. For guidance on your specific situation, consult qualified counsel.
