Use in commerce

Definition

Use in commerce refers to the genuine use of a trademark in the ordinary course of trade, which is necessary for establishing and maintaining trademark rights. This concept is crucial because it helps to distinguish between trademarks that are actively used to identify goods or services and those that are merely registered without any actual commercial activity. For a trademark to be protected, it must be shown that it is used in connection with the sale or advertising of goods or services in the marketplace.

5 Must Know Facts For Your Next Test

1. For a trademark to qualify for protection, it must be used in commerce; mere intent to use is not enough.
2. Use in commerce can include both sales of goods and services as well as promotional activities that demonstrate the mark's association with those goods or services.
3. If a trademark is not used in commerce for three consecutive years, it may be considered abandoned, which can lead to loss of rights.
4. The requirement for use in commerce is designed to prevent 'trademark squatters' who register marks without any intention of using them.
5. A trademark may still have some level of protection if it is used solely for export purposes, even if it is not sold domestically.

Review Questions

• What are the implications of failing to demonstrate use in commerce for a registered trademark?
  • Failing to demonstrate use in commerce can lead to the abandonment of a trademark, meaning the owner risks losing exclusive rights to the mark. A registered trademark must be actively used in trade or commercial activity to maintain its status. If a mark is not used for three consecutive years, it may be considered abandoned under trademark law, which allows others to potentially claim rights over that mark.
• How does the concept of use in commerce differentiate between legitimate trademarks and those that are simply registered?
  • The concept of use in commerce ensures that only trademarks actively associated with goods or services in the market receive legal protection. Legitimate trademarks are those that have been put into actual use, helping consumers identify specific products or services. In contrast, trademarks that are merely registered but not used can be challenged and potentially canceled, as they do not serve their purpose of distinguishing goods or services within the marketplace.
• Evaluate how the requirement for use in commerce affects both businesses and consumers regarding trademark protection.
  • The requirement for use in commerce impacts businesses by encouraging them to actively market and utilize their trademarks, thereby reinforcing brand identity and consumer recognition. For consumers, this ensures that trademarks serve their intended purpose—helping them make informed purchasing decisions based on familiar brands. However, this requirement also poses challenges for startups and small businesses that may struggle with initial brand visibility but need to prove commercial use to protect their trademarks from competitors and squatters.

Related terms

Trademark Registration: The process of registering a trademark with the relevant governmental authority, providing legal protection and exclusive rights to use the mark.

Abandonment: The loss of trademark rights due to a failure to use the trademark in commerce for an extended period, typically three consecutive years.

Commerce Clause: A provision in the U.S. Constitution granting Congress the power to regulate commerce among the states, which forms the basis for federal trademark law.