Many entrepreneurs are surprised to learn that simply printing business cards or launching a website isn’t enough to establish trademark rights. “Use in commerce” has a specific legal meaning that goes beyond just announcing your brand to the world. Let’s demystify what really counts.
The Legal Standard
For trademark purposes, “use in commerce” means your mark is being used in the ordinary course of trade – not just token use to reserve rights. But what does this actually look like in practice? It varies depending on whether you’re selling goods or services.
For Physical Products
If you’re selling goods, genuine “use in commerce” typically requires:
- The mark appears on the product or packaging
- The product is actually sold or transported across state lines
- The use is more than just a single token sale
For example, having your logo on products sitting in your warehouse isn’t enough – they need to be available for purchase and actually selling to real customers.
For Services
Service marks have different requirements:
- The mark must be used or displayed in selling or advertising the services
- The services must be actually rendered in commerce
- The services must cross state lines or affect interstate commerce
A website advertising your consulting services can qualify – but only if you’re actually providing those services to clients.
Common Misconceptions
Here are some activities that DON’T count as use in commerce by themselves:
- Forming your entity
- Reserving a domain name
- Creating business cards or promotional materials
- Filing a business registration
- Making a single sale to your friend
- Having a website that’s “coming soon”
- Saying your brand or slogan on YouTube
Real Use vs. Token Use
The key is demonstrating genuine commercial use, not just attempts to reserve rights. Courts and the USPTO look for evidence that you’re seriously engaged in business activity with your mark, not just trying to squat on it.
The Bottom Line
Remember: trademark rights come from actual use in real commercial activity. The earlier you can show genuine use in commerce, the stronger your trademark rights will be. Here is a video I created on this topic: https://youtu.be/vGo0mXyz0Gk
If you’re unsure whether your current use of your mark meets the legal requirements for trademark registration, we can help you evaluate your situation and determine the best path forward. Call us today at (888) 666-0062 or click here to schedule your initial Discovery and Strategy Session online. Let’s make sure your trademark use puts you in the strongest possible position for protection.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
