What Does It Mean for Trademarks to be “Used” in Interstate Commerce?
“Used in interstate commerce” refers to the use of a trademark in connection with goods or services that are sold or transported across state lines. To be considered “used in interstate commerce,” the trademark must be used in a manner that demonstrates the trademark owner’s use of the trademark in connection with the sale or transportation of goods or services in commerce that is capable of flowing across state lines.
For example, if a company produces and sells a product in one state to a customer in another state, and then ships that product to the customer in the other state, the trademark used to identify the product is considered to be “used in interstate commerce.” In another example, if a company operates a e-commerce website that offers goods for sale to customers nationwide, the trademark used to identify the source of the goods sold on the e-commerce website is considered to be “used in interstate commerce.”
It is important to note that “used in interstate commerce” is a requirement for federal trademark registration on the Principal Register with the United States Patent & Trademark Office (USPTO). Trademarks that are not “used in interstate commerce” are not eligible for federal registration and cannot be protected under federal trademark law. The important takeaway here is that if a trademark is used to identify the source of goods or services within a state (or intrastate), the trademark would not be eligible for federal trademark registration. Rather, the trademark owner should register the trademark in the specific state where the goods or services are provided.
Overall, the requirement of “used in interstate commerce” demonstrates the connection between a trademark and the goods or services that are sold or transported in commerce across state lines, and it is an important factor in determining the eligibility of a trademark for federal registration.
Do I Need To Use My Trademark In Interstate Commerce Before Applying For a Trademark With the USPTO?
No. Unlike state trademark registrations where as showing of intrastate use is required, the USPTO allows a trademark applicant to submit an “Intent To Use” trademark application. An Intent to Use trademark application requires the applicant have a “bona fide intention” to use the trademark in interstate commerce in the near future.
Having a “bona fide intention to use the trademark in commerce” means that the applicant for a federal trademark registration with the USPTO have a good faith, genuine, and credible intention to use the trademark in connection with the sale or transportation of goods or services in commerce that is capable of flowing across state lines. This intention must be real, and not just a hypothetical or speculative plan to use the trademark in the future.
It is important to note that if an applicant does not have a bona fide intention to use the trademark in commerce, or if the trademark is not being used in commerce, the trademark may not be eligible for federal registration on the Principal Register with the USPTO.
Overall, having a bona fide intention to use the trademark in commerce is an important factor in determining the eligibility of a trademark for federal registration on the Principal Register with the USPTO. The requirement of a bona fide intention to use the trademark in commerce ensures that only trademarks that are actually being used, or that have a genuine intention to be used in commerce, are eligible for federal registration.
Do I Need To Use My Trademark In Interstate Commerce Before The USPTO Will Register My Trademark?
Yes, according to the USPTO’s Trademark Manual of Examining Procedure (TMEP), an applicant must use their trademark in interstate commerce before it can be registered with the USPTO.
Specifically, TMEP Section 901 states that “In a trademark or service mark application based on use in commerce under §1(a) of the Trademark Act, 15 U.S.C. §1051(a), the mark must be in use in commerce on or in connection with all the goods and services listed in the application as of the application filing date. See 37 C.F.R. §§2.2(k)(1), 2.34(a)(1)(i). The application must include a statement that the mark is in use in commerce, verified in an affidavit or declaration under 37 C.F.R. §2.20. See 37 C.F.R. §§2.32(a)(5), 2.34(a)(1)(i). If this verified statement is not filed with the original application, it must also allege that the mark was in use in commerce on or in connection with the goods or services listed in the application as of the application filing date. 37 C.F.R. §2.34(a)(1)(i). See TMEP §§804 et seq. regarding verification.”
What Evidence Must I Show TO The USPTO Before My Trademark Will Register?
To register a trademark with the USPTO, an applicant must provide evidence that the mark is currently in use in interstate commerce.
If the trademark is currently in use in commerce, the applicant must submit a specimen or evidence of use showing how the mark is used in connection with the goods or services for which registration is sought. The specimen must show actual use of the mark in commerce, such as a label, tag, packaging, or advertisement displaying the mark on the goods themselves or in connection with the sale or advertising of the goods. It’s worth noting that the USPTO has specific requirements for what constitutes an acceptable specimen or evidence of use, and the requirements can vary depending on the type of mark and the goods or services involved.
