Trademark use in commerce means genuine use of a mark in the ordinary course of trade, not a token transaction made only to reserve a name. For goods, the mark generally must appear on the goods, packaging, tags, labels, or an acceptable point-of-sale display, and the goods must be sold or transported in commerce. For services, the mark must be used in selling, advertising, or rendering services that are actually provided in commerce.
The analysis is factual. There is no universal minimum number of sales, customers, states, or dollars that automatically qualifies every business.
Use for goods
For goods, the mark must be placed in a way customers associate with the products. The goods also must be sold or transported in commerce. The USPTO describes these requirements in TMEP Section 901.
- A label or tag attached to the product.
- Branded packaging in which the product is sold.
- The mark applied directly to the product.
- A webpage that functions as a point-of-sale display and sufficiently associates the mark with the goods.
Advertising alone is usually not trademark use for goods. A social post announcing a future product may show planning, but it ordinarily does not replace a real sale or transport of the branded goods.
Use for services
For services, the mark may appear in advertising or sales materials, but the services must actually be rendered. A consultant who launches a website but has not yet offered or performed the identified service may not have qualifying use merely because the site is public.
Hypothetical example: A landscaping company uses its mark on a website and invoices while providing services to customers across state lines. Those facts may support use for landscaping services. A landing page collecting interest for services that are not yet available presents a different situation.
What does ordinary course of trade mean?
The statutory standard excludes use made merely to reserve rights. The appropriate pattern depends on the industry. A costly custom product may be sold less often than an everyday consumer item. A seasonal business may have gaps that are normal for its market.
The USPTO’s intent-to-use guidance likewise explains that use must occur in the ordinary course of trade and not consist only of token use.
- Domain registration: What it may show: Preparation or name selection Typical limitation: Does not itself show trademark use for goods or services
- Advertising future goods: What it may show: Launch planning Typical limitation: Advertising alone usually is insufficient for goods
- Actual branded product sales: What it may show: Potential use for goods Typical limitation: The mark and claimed goods must be properly associated
- Rendering branded services: What it may show: Potential use for services Typical limitation: The services must match the application identification
- One contrived shipment: What it may show: A transaction occurred Typical limitation: Token activity solely to reserve rights is insufficient
Use must match the application
A Section 1(a) application requires use for the goods or services listed at filing. If the application covers several classes, qualifying use and an acceptable specimen are required for each class. The USPTO cautions applicants against claiming more goods or services than they use or genuinely intend to use in its scope-of-protection guidance.
The owner also matters. Use by a related company or licensee can sometimes benefit the trademark owner, but control and the legal relationship should be documented. Do not assume that every affiliate’s activity automatically counts for every applicant.
Keep evidence before you need it
- Dated photographs of labels, packaging, displays, and products.
- Archived webpages showing the mark, goods or services, and purchasing or contact information.
- Invoices, order records, shipping records, and service agreements.
- Records showing when and where services were actually rendered.
- License and quality-control documents when another party uses the mark.
Your next step
Match each proposed identification to real business activity. If use has not begun, consider an intent-to-use filing rather than stretching the facts. Use the step-by-step trademark guide for the larger filing process. For how use may create rights before registration, read What Are Common Law Trademark Rights?. A clearance search remains separate; start with the trademark-search guide.
Read next
- Can I Trademark a Name Before Starting My Business?
- What Are Common Law Trademark Rights?
- How to Trademark a Business Name
- Browse all trademark articles
This article provides general information about U.S. trademark law, not legal advice. Reading it does not create an attorney-client relationship.