Use of Trademark in Commerce
When you use your trademark in commerce, you are using it to identify the source of your goods or services to consumers. Trademark rights arise from actual use in commerce: If you want to register your trademark with the U.S. Patent & Trademark Office (USPTO), you must prove that someone else has been using it first (and not just advertising).
Use of Trademark in Commerce
The use of a trademark in commerce means that the goods or services with which the trademark is used are connected in some way to the stream of commerce, and that the trademark is used to identify the source of those goods or services.
The Most Important Requirement
One of the first requirements for trademark registration is use. A person must be using a mark in commerce before he can register it. There are two types of use: primary and secondary. Primary use is when the mark is used on the goods or services being sold, while secondary use involves some other form of promotion, such as advertising or marketing materials.
The trademark owner must also show that they have used their registered trademark in interstate commerce (between two states) or foreign commerce (between countries).
Trademark use must be Bona Fide
To be considered a “bona fide” use of a trademark in commerce, your use must be real. That means that the trademark can't simply be used on items meant to advertise or promote your business or brand, but rather it must appear on actual goods or services that are available for sale in the marketplace.
In other words, if you own a restaurant and sell food made at your restaurant with the registered trademarked name “Bucky's Barbecue” on them, this would likely qualify as a bona fide use. However, if you only ever printed up labels with just “Bucky's Barbecue” on them and never actually sold any barbecue—just used those labels as part of an advertising campaign—this would not qualify as bona fide use.
If you're unsure whether something constitutes proper usage under U.S. Trademark law (and who isn't?), we recommend consulting an attorney who handles these matters regularly before proceeding further down this path.
Using a Mark on Packaging
Trademark law recognizes that a mark is used in commerce if it appears on the packaging of goods or their labels. This is true even though the goods themselves may not have been shipped to any customers.
What this means for you: If you're using your trademarked logo or brand name as part of your product packaging, you can use that package to demonstrate use in commerce. If a customer sees your logo on the outside of something they buy, they'll be more likely to think it was made by you—and that's exactly what we want when applying for trademarks.
Resellers may use Manufacturers' Marks
The use of a trademark in commerce may be made by any person who is engaged in the production or sale of goods or services. A user does not need to be the producer of goods sold under a mark in order to be using them in commerce. Resellers may use manufacturers' marks in commerce.
Where to Use Your Mark
A mark can be used in association with goods or services, with dealership services and even with advertising services. You can use your mark on anything that is related to your business.
When you use your trademark properly, it will help you get stronger rights and keep others from infringing on your rights. You should use your trademark in commerce; that is, on real goods or services that are available for sale in the marketplace. If you use your trademark on items meant for advertising purposes only, such as posters and brochures, these uses do not qualify as use in commerce and may not prevent others from using similar marks.
When you use a trademark in commerce, it is important to do so properly. This means making sure that the mark is being used on real goods or services that are available for sale in the marketplace, not just items meant for advertising purposes.