Use in Commerce

Because any small error or oversight in a federal trademark application can result in an immediate halt in the registration process, it is crucial to understood the legal language and minutia of all relevant forms in order to avoid this issue. One of the most commonly misinterpreted terms in the application is the phrase, “in commerce.” More specifically, the application will use this phrase when it asks for two important, yet distinct dates: the date of first use and the date of first use in commerce.

The first date of use is a fairly straightforward question, simply referring to the date that that good or service was first made publicly available. Many people, however, make the false assumption that this implies that the date of first use and the date of first use in commerce are always synonymous. This may be true in some cases, but in other circumstances these two dates can vary by decades.

First use in commerce actually refers to the date at which the good or service was made publicly available across multiple states. For business owners that launch their product or service on a national or international website, the date of first use may very well be the same date as the date of first use in commerce. Small-businesses or start-ups that provide local or municipal services however need to be aware of the difference between the initial date of first use and the date at which they began serving customers in a multiple states.

In some cases, interstate transportation or shipment and interstate advertisement may even suffice the definition for use in commerce.  It is important however to understand that this applies only in ordinary courses of trade. While this understand may appear to parse the definition of use in commerce, this nuanced difference can sometimes separate a successfully registered trademark from a trademark that need undergo extensive battles with the Trademark Trial and Appeal Board (TTAB). Our trademark attorneys offer the legal counsel to help professionals and business owners provide the appropriate specimen for a proper approval of use in commerce. Get started here to learn more about the legal services available to you during the trademark search and registration process.