Key Takeaways

  • “Use in commerce” means your mark appears on goods (or packaging/point-of-sale displays) that are sold or transported, or it’s shown with services actually rendered to customers; mere advertising isn’t enough.  
  • The commerce must be federally regulated (e.g., interstate, territorial, D.C., tribes, or import/export). Online sales often qualify because the internet is inherently interstate.
  • Specimens differ for goods vs. services. Goods: mark on the product, packaging, tags/labels, or a point-of-sale display. Services: mark used where the services are offered (site, ads, brochures) while the services are actually available.  
  • “Token” or sham transactions don’t count. You need bona fide, ordinary-course sales/transportation; internal shipments or staged sales to friends/family are risky.   
  • For software: downloadable apps can rely on app-store or other point-of-sale displays; SaaS/services need the mark on a page where users can actually sign up or receive the service. (Derived from the same goods/services specimen rules.) 

Trademark use in commerce is required to establish ownership of a trademark. Historically, use in commerce is defined as a product, name, packaging, or another form of branding that is sold across state lines rather than just within a state.

Registering a Trademark

Although you own a trademark simply by using it in commerce, you may also want to register your trademark. You can do so before you begin using the trademark so that the desired name or mark is reserved. Some attorneys charge about $195 to file a trademark application.

Once the United States Patent and Trademark Office (USPTO) reviews and approves your trademark application, you will subsequently be required to show proof of its use in commerce.

Intent-to-Use (1(b)) Filings: Proving Use on Time

  • An intent-to-use (ITU) application lets you file before launch, but you must later submit a Statement of Use with a proper specimen showing the mark as used at the time of sale/transport or service delivery—not added after the fact.  
  • Advertising alone doesn’t establish use for goods; your specimen must tie the mark to actual goods or a real ability to purchase. For services, ads/webpages may work only if the services are available and the mark clearly identifies the source.
  • Be prepared to document real, third-party transactions—not staged “sales”—when you file your Statement of Use.

Establishing Use in Commerce

Your federal trademark application will require you to note the date you first used the mark, as well as a later date when it was first used in commerce. What is considered use in commerce will depend if your trademark will cover products or services. For products, proof of use in commerce could include:

  • Product packaging, labels, or tags
  • The product itself with the mark displayed
  • Brochure or retail display

Advertising and marketing materials alone are not considered proof of commercial use for products. However, they can be used for services as long as the mark is prominently displayed and services are described.

Because the Lanham Act states that commercial use of a trademark must be lawfully regulated by Congress, certain registration standards apply for federal trademarks. This has been defined by the USPTO and the courts as the need to offer goods or services across state lines or import them from abroad. Shipped products must bear the trademark in question. Selling products or services within your own state is not considered use in commerce because it is not congressionally regulated. However, with online commerce, this distinction is less important than it was in earlier years. Selling products to other nations is also considered use in commerce by federal law.

Acceptable Specimens: Trademark Use in Commerce Examples

Goods (examples that typically work):

  • Mark on product, container, label, tag, or packaging.
  • Point-of-sale display (e.g., product page/cart in an online store) linking the mark to an actual purchase.
  • Transportation in commerce (e.g., bona fide shipments to customers or outside investigators), not mere in-house testing. 

Services (examples that typically work):

  • Website or brochure where the mark is prominent and the service is actually available (e.g., “Book now,” “Enroll,” “Schedule”).  
  • Business cards/advertising can serve if they clearly link the mark to live, provided services. 

Jurisdictional note: The use must be in federally regulated commerce (interstate, territorial, D.C., tribal, or import/export). Purely intrastate use usually isn’t enough, with narrow exceptions (e.g., a local agency arranging interstate travel). Online operations often meet the interstate element. 

Token Use of a Mark

For a successful trademark application, use in commerce must go beyond token use. Although no threshold of dollars or units has been established as bona fide use, courts have considered one transaction, one shipment, or a handful of sold units as insufficient use. Before 1989, token use was considered acceptable for a federal trademark application. However, the company must also possess the intent to continue using the mark even if their initial product run or shipment was very small.

The main case supporting this token use was that of Fort Howard Paper Company, which used a six-box shipment to support its federal trademark application. Their mark was successfully registered, and they followed up with additional shipments after about two years. Other cases have also allowed token use in commerce in the presence of intent to continue use.

In most cases, sales made with the intent to establish a business, even on a small scale, serve as evidence of bona fide use that will suffice for a trademark application. Sham transactions, on the other hand, are not considered acceptable use. Some examples that were rejected by the USPTO as bona fide use include:

  • One jar of salt sold by one corporate officer to another
  • A single shipment sent to a partner company that was immediately returned
  • A small shipment of juice to a shareholder company at no charge
  • A single shipment of auto parts to a business owner's spouse

Nominal, casual, or sporadic bona fide commercial transactions are at USPTO discretion. Some examples that have been rejected include:

  • Sale of a single jar of cold cream in one four-year period
  • Monthly acne medication shipments to wholesalers with no evidence of end users purchasing the product
  • One shipment of china in a seven-year period
  • Sales of perfume over 20 years that resulted in less than $100 in profit
  • Use of the mark only on shoes sold by a competitor

Bona Fide Use vs. Token or Sham Sales

  • Since 1989, token use (e.g., a single contrived sale) no longer qualifies; the law requires “bona fide use…in the ordinary course of trade.”
  • Sham transactions (sales to friends/employees or immediately returned goods) don’t count. Expect scrutiny where sales are nominal, sporadic, or manufactured to create paper trails.
  • Promotional shipments/free samples may help only when clearly tied to building real future sales (e.g., product sent to clinical investigators or samples at buyer presentations). Internal transfers don’t qualify.
  • Bottom line: aim for meaningful, arm’s-length sales/transportation that reflect genuine market activity.

Use in Commerce for Software

For mobile apps and other software products, the launch of the app is typically considered use in commerce. Beta testing may or may not be considered sufficient depending on the extent of the testing.

Software & Apps: Specimen Tips That Pass

  • Downloadable software (goods): use the mark on an app-store/product page or other point-of-sale display where users can download/buy the app; this mirrors packaging/label rules for goods.  
  • SaaS or hosted tools (services): show the mark where the service is offered and available now (e.g., a live sign-up/“Start free trial” page or customer dashboard), not a “coming soon” splash.  
  • Beta tests & pilots: limited external distributions aimed at real users may support use if they are part of a bona fide commercial rollout (not private/in-house testing). Keep contemporaneous records of users, access, and availability.
  • Common pitfalls: screenshots that are pure advertising without the ability to enroll/purchase, or marks buried in UI with no connection to the service offered.

Frequently Asked Questions

  1. What counts as use in commerce for goods?
    Showing the mark on the product, packaging, tags, or a point-of-sale display tied to actual sales/transportation in interstate commerce.  
  2. Is a website enough to prove use for services?
    Yes, if the site prominently displays the mark and the services are actually available (e.g., booking, signup). Mere advertising isn’t enough.  
  3. Do online sales satisfy the interstate element?
    Often yes. The use must be in commerce regulated by Congress; online transactions and cross-border sales typically qualify.
  4. Can free samples or pilots count?
    Sometimes—if they’re bona fide steps toward real sales (e.g., clinical investigators, buyer presentations), not in-house testing or sham distributions.
  5. What’s “token use,” and why is it rejected?
    Token/sham sales (e.g., one staged purchase) don’t show ordinary-course trade. Since 1989, the law requires bona fide use, not placeholders. 

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