One of the most important concepts you need to know while applying for a trademark is the meaning of ‘Use in Commerce’ with respect to trademarks. In a nutshell, use in commerce refers to when your trademark has actually been used in commerce. It indicates the goods and/or services that a trademark is being used to sell. This short article will walk you through a few scenarios and explain how to prove "Use in commerce" when it comes to the registration of your trademark.
How to use a trademark in commerce?
Section 45 of the Lanham Act defines “Use in Commerce” as “Bona Fide Use of a trademark in the ordinary course of trade.” What’s interesting is the phrase ‘Bonafide use’ has not been defined in the Act or anywhere else but generally, it means an honest and genuine use of a trademark. Let’s understand this with the help of an example:
Assume that you deal in goods falling under class 25 i.e clothing, footwear and headgear. You can use your trademark in commerce by placing your trademark directly on the goods or on the product’s packaging, labels, tags, invoice of that product issued to the customers, and so on. Similarly, if you provide services, you can use your trademark on the marketing materials like flyers, advertisements, website page, etc.
How to prove ‘Use in Commerce’: A guide on submitting the right specimen
At some point, you will have to submit a convincing proof to the United States Patent and Trademark Office (USPTO) to establish that you or have been using your trademark in commerce with respect to the applied goods and/or services. The way you do this is by submitting a specimen to the USPTO.
A specimen, as the name suggests is a portrayal of the various ways you are using your trademark in the normal course of trade. A specimen constitutes real-life evidence of how you are actually using your trademark with the goods/services mentioned in your application. It is what consumers see when they are considering whether to purchase or use the goods/services you provide in connection with your trademark. For example, have a look at a specimen submitted by Spotify for class 38 and class 42. The specimen clearly displays Spotify’s trademark in direct relation with the services it provides i.e music streaming.
Similarly, take a look at a specimen submitted by GUCCI for its goods falling under class 25. The provided specimen clearly displays the GUCCI trademark embedded on the buckle of the blet.
Conclusion
For a trademark to get registered with the USPTO, it must be capable to establish that it is being used in commerce. If you fail to establish this, your trademark application may get abandoned, thus, it is important to use your trademark in commerce in a correct manner. The best way you can make sure that you are using your mark the right way is to take guidance from a licensed trademark attorney. We, at Coger Law Firm have guides businesses and start-ups in using their trademark the right way.