Startup founders looking to protect their brands need to understand the concept of “use in commerce” to successfully register their trademarks with the U.S. Patent and Trademark Office (USPTO). This article will break down what “use in commerce” means, why it matters, and how you can ensure your trademark activities meet this requirement.

What Does “Use in Commerce” Mean?
In trademark law, “use in commerce” refers to the use of a trademark in the ordinary course of trade. This doesn’t necessarily mean that a product or service needs to cross state lines, but it must be available for sale in a genuine commercial transaction that affects interstate commerce. This requirement ensures that trademarks serve their primary purpose of indicating the source of goods or services to consumers.

Why is “Use in Commerce” Important?
“Use in commerce” is a threshold that must be met for the USPTO to grant a trademark registration. It is foundational in trademark law because it prevents companies from reserving trademark rights indefinitely without actual use. The use requirement promotes a competitive market by ensuring that protection is granted only to marks that are truly in use.

Criteria for “Use in Commerce”
To meet the USPTO’s “use in commerce” criteria, the use must be:

1. Bona Fide
   The use of the mark must be in a bona fide manner in the ordinary course of trade, and not made merely to reserve rights in the mark.
2. In the Sale or Advertising of Goods or Services
   The mark must appear on the goods, their packaging, or with displays associated with the goods, or be used in the sale or advertising of services.
3. Across State Lines or with International Commerce
   The commerce must affect interstate commerce. With some exceptions, this means that goods must be sold or transported across state lines or to foreign countries, and services must be rendered in more than one state, in the U.S. and a foreign country, or in a manner that has an effect on commerce crossing state or national borders.

Practical Tips for Demonstrating “Use in Commerce”

1. Document Your Usage
   Keep thorough records of how and when your trademark is used in commerce. This could include copies of sales receipts, advertisements, marketing materials, and photographs of the packaging.
2. Use the Mark Consistently
   Ensure that the trademark is used consistently on all product packaging, advertisements, and correspondence related to the goods or services.
3. Monitor and Update Usage
   As your business evolves, regularly review and update how your trademark is used to ensure continuous compliance with USPTO requirements.

Common Misconceptions

1. Intent to Use is Enough: Merely intending to use a trademark is not enough. Even if you own an active intent-to-use trademark application, if you never sell the goods or services, your application will not mature into a registration. In addition, if you stop using a trademark after it is registered, your rights could be challenged and you may lose the registration.
2. Minimal Use is Sufficient: Token use of a trademark solely to meet USPTO filing requirements may not be sufficient and can also be challenged.

Takeaway
“Use in commerce” is a key element of the trademark registration process that confirms a trademark is actively used in the marketplace. Understanding this requirement not only aids in securing a trademark registration but also ensures that the rights are maintained and enforceable over time. As always, it’s wise to consult with a trademark attorney to ensure that you meet the legal standards required for trademark protection.

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