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Trademark Law: What is the ‘Commercial Use’ Requirement?


To successfully register a trademark with the United States Patent and Trademark Office (USPTO), there are several different legal requirements that you will have to meet. One of the more complex requirements is the so-called “use in commerce” requirement. Essentially, you will not be able to have your trademark application approved unless you can prove an actual commercial purpose for your mark. In this post, our experienced Miami trademark litigation attorneys explain some of the most important things that you need to know about this requirement.

The Trademark Act: What is ‘Commerce’? 

For the purpose of trademark law, the Trademark Act (15 U.S.C. §1127) requires you to use a mark in the actual course of trade. Whether you are selling goods or services, you must have a bona fide commercial purpose. Further, this must be an active commercial purpose. You cannot simply reserve any symbol or trademark that you might someday want to use in business.

Additionally, you must be engaged in commerce that is regulated by the United States Congress. This requirement is actually somewhat less stringent than it sounds. For the most part, goods and services qualify as regulated by Congress as long as they are marketed or sold across state lines. This is because the federal government has the power to regulate interstate commerce. Notably, most goods or services sold within a single state are still considered to meet the definition of interstate commerce, and thus, federal trademark protection is still available.

How to Secure a Trademark for Future Commercial Use 

For entrepreneurs and business people who are considering future branding campaigns and other commercial endeavors, the commercial use requirement in the Trademark Act can be confusing. If you are in this situation, you may be wondering: “Do you have to wait until your product or service is already for sale to file a trademark application?”  

There answer to this question is ‘no’. You can take immediate action to protect your brand by filing a form that is known as an Intent to Use (ITU) trademark application. This form must also be filed with the USPTO, and it is an important tool that helps companies and brands take quick action to protect their interests. When you file this form, you must simply have ‘bona fide intent’ to use your proposed trademark. You will not be required to prove actual commercial use at this point. A successful ITU trademark application can be used to reserve access to some future rights. Though, you will not get full trademark rights until you actually begin commercial operations.

Request Your Free Legal Consultation Today 

At Pike & Lustig, LLP, our top-rated Florida trademark law attorneys have extensive experience handling a wide array of trademark claims. If you need trademark law assistance, please contact us today to set up your free case evaluation. We proudly represent clients in trademark litigation throughout Southeast Florida, including in Hialeah, Hollywood, Kendall, Fort Lauderdale, and Palm Beach Gardens.



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