Trademark Registration: What Is First Use in Commerce?


Detroit Michigan Trademark Attorney: Use in Commerce Definition

The US Trademark Act only permits an application for registration of a trademark to be filed when it is either “used in commerce” or when there is a “bona fide intention” to use it in commerce. 

What does that mean? 

The Trademark Act states that it means the use of a trademark in the actual course of trade and not simply in the design or presentation of a mark or to prospectively “reserve” a mark. 

A mark is used in commerce when it is placed upon the goods being sold, or their containers or the displays associated with the goods being sold, AND the goods are sold or transported in commerce. 

For services rather than goods, when the mark is used in the sale or advertising of services offered in commerce. 

Detroit Michigan Trademark Attorney: First Use in Commerce Definition

Between two competing applications for registration of a similar (or identical) trademark or service mark, the applicant who FIRST used the mark in commerce will obtain registration

The first use in commerce will be the date when the goods (or service) were first sold or transported UNDER the mark in question. 

The type of commerce involved must be one that is lawfully regulated by the U.S. Congress, meaning that it must be interstate commerce rather than commerce that is conducted entirely within a U.S. state. 

An application must state the dates of both the first use anywhere and the first use in commerce. These dates can be the same if the type of commerce involved was interstate. 

All applicants are required to provide this information, including foreign applicants, so long as they are filed under Sections 1(a) of 1(b) (“in use” or “intent to use”) as opposed to filings based on foreign registrations or pursuant to the Madrid Protocol. 

Detroit Michigan Trademark Attorney: First Use in Commerce – The Bottom Line

The bottom line with regard to trademark registration is that retaining a knowledgeable attorney to assist you with your application will provide you a measure of comfort in knowing that details such as these will be properly handled and will not upend your chances of a successful registration. 

Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting craft brewers, vintners, distillers, and others in all industries with trademark registration, trademark renewal, trademark monitoring, and Office Action refusal response matters.

We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration success.

Click the “Register Your Trademark” button below to schedule your initial consultation and to begin your brand protection journey.