"Use in Commerce" for Trademark Purposes

Applications are filed based on current use in commerce or an intention to use the mark, each under a distinct statutory section.

Federal trademark rights in the United States are tied to actual commercial use, not simply the creation or adoption of a mark. Without satisfying the use-in-commerce requirement, a trademark application cannot mature into a registered trademark.

How does "use in commerce" work

The Lanham Act, the federal statute governing trademarks, defines "use in commerce" as the bona fide use of a mark in the ordinary course of trade. The standard has two distinct components depending on whether the mark covers goods or services.

For goods: The mark must appear on the goods themselves, on their containers, on labels or tags attached to the goods, or on documents associated with the goods or their sale. The goods must also be sold or transported in commerce.

For services: The mark must be used or displayed in the sale or advertising of the services, and those services must be rendered in commerce.

Both categories require that the commerce involved be "lawful commerce" that Congress can regulate, which, in practice, means interstate commerce, commerce between the U.S. and a foreign country, or commerce within U.S. territories.

Why does use in commerce matter?

The use-in-commerce requirement is foundational to U.S. trademark law. It prevents businesses from stockpiling trademark registrations for marks they have no genuine intention of using, which would otherwise block competitors from adopting similar marks in real commercial activity. The Trademark Modernization Act authorizes the USPTO to initiate nonuse proceedings and cancel registrations when the registrant cannot provide evidence of use, a provision enforced in part through the Register Protection Office established in FY 2023.

Establishing use in commerce also determines priority. The party that first uses a mark in commerce generally has superior rights to that mark, even over a later applicant who files first. This makes the date of first use a critical fact in trademark disputes.

For business owners, understanding this requirement is essential before filing a trademark application, particularly since only about 51.7% of applications filed with the USPTO are registered. Submitting a use-based application without genuine commercial use can result in rejection or, worse, cancellation of a registration after issuance. In August 2025, the USPTO terminated more than 52,000 trademark applications tied to fabricated-use claims in its largest fraud-sanctions case.

Common examples of use in commerce

The following scenarios illustrate what qualifies and what does not qualify as use in commerce.

• A clothing brand selling shirts online: The brand name appears on hang tags, and the goods are shipped across state lines. This satisfies the use-in-commerce requirement for goods.
• A consulting firm advertising its services on a website: The firm's name and logo appear in service advertisements, and the firm has provided consulting services to clients in multiple states. This satisfies the use-in-commerce requirement for services.
• A startup that has designed a logo but has not yet sold any products: This does not constitute use in commerce. The owner may instead file an intent-to-use trademark application to reserve rights while preparing to launch.
• A business that sold products in a single state only: Purely intrastate commerce generally does not satisfy the federal use in commerce standard, though it may support common law trademark rights.

Key characteristics of use in commerce

Use in commerce under trademark law has several defining features.

• It must be genuine. Token use, such as a single sale made solely to establish a filing date, does not satisfy the standard. The use must reflect ordinary commercial activity.
• It must be public. Internal use within a company or use limited to testing does not qualify.
• It must be in connection with specific goods or services. The mark must be used in connection with specific goods or services identified in the trademark application, a requirement that the Ninth Circuit has held is equivalent to the "use in commerce" standard itself.
• The date matters. The date of first use in commerce is recorded in the trademark registration and can be used to establish priority over later users of the same or similar mark.

Use in commerce vs. intent to use

A trademark applicant who has not yet achieved use in commerce may file an intent-to-use trademark application with the USPTO. This filing reserves the mark while the applicant prepares to launch commercially, and with use-based filings now outpacing intent-to-use applications, the distinction between the two bases carries increasing practical weight. However, the registration will not issue until the applicant submits a statement of use, a sworn declaration confirming that the mark is now in use in commerce, which carries a $150 per-class filing fee as of January 2025, along with a specimen showing actual use.

The key distinction is that an intent-to-use application secures a priority date, but federal registration requires actual use in commerce before it becomes final.

What counts as first use in commerce

First use in commerce refers to the earliest date on which a mark was used in a genuine commercial transaction meeting the Lanham Act's standard. This date is distinct from the date the mark was first conceived or first used internally.

Applicants must identify both the date of first use anywhere (which may include intrastate use) and the date of first use in commerce (which must meet the federal standard). The latter is what the USPTO uses to evaluate priority.

Considerations and best practices

Applicants should retain documentation supporting their claimed date of first use in commerce. Invoices, shipping records, screenshots of product listings, and advertising materials can all serve as evidence if the date is later challenged—as illustrated by the first precedential TTAB expungement decision, where a registrant's failure to prove use resulted in cancellation.

A specimen, a real-world example showing the mark in use, must accompany a use-based application or a statement of use. The USPTO scrutinizes specimens carefully, with a December 2025 TMEP update reinforcing specimen standards and fraud-prevention procedures; a specimen that shows only the mark in isolation, without connection to actual goods or services, will be rejected.

Businesses that operate only within a single state should be aware that their use may support common law trademark rights but may not meet the federal use-in-commerce threshold for USPTO registration.

Related terms and next steps

Understanding use in commerce is a prerequisite for navigating the trademark registration process. Several related concepts bear directly on this requirement.

• Intent to use trademark application: The filing option for applicants who have not yet achieved use in commerce
• Statement of use: The document submitted to the USPTO confirming that use in commerce has been achieved after an intent-to-use filing
• First use in commerce: The specific date on which a mark was first used in qualifying commercial activity
• Common law trademark: trademark rights that arise from use alone, without federal registration
• Trademark search: the process of checking whether a mark is already in use before filing

For business owners preparing to file, confirming that a mark qualifies as being in use in commerce, or determining whether an intent-to-use application is the right path, is a decision where guidance from a trademark attorney can prevent costly errors.

FAQs about "use in commerce" for trademark purposes

Can a single sale be enough to establish use in commerce for trademark purposes?

A single sale made in the ordinary course of genuine business activity can technically satisfy the standard, but a sale engineered solely to create a filing date, with no real commercial intent behind it, will not. The USPTO and courts look for evidence that the transaction reflects actual trade, not a manufactured attempt to check a legal box.

What is an acceptable specimen for showing use in commerce?

For goods, a photograph of the mark on the product, its packaging, or a hang tag is the most straightforward specimen; for services, a screenshot of a website where the mark appears, along with a description of the services offered, is commonly accepted. A specimen that displays the mark in isolation, such as a logo on a blank background with no connection to actual goods or services, will be rejected by the USPTO.

Does selling products exclusively through an online store satisfy the interstate commerce requirement?

Yes, provided the goods are actually sold and shipped to customers in different states, an e-commerce transaction that crosses state lines falls squarely within the commerce Congress can regulate under the Lanham Act. A business that only ships within a single state, even if it operates online, generally does not meet the federal use in commerce threshold, though it may still acquire common law trademark rights within that state.

How does use in commerce affect trademark priority when two businesses use the same mark?

Priority generally belongs to the party who first used the mark in commerce meeting the federal standard, regardless of who filed a trademark application first, which is why the date of first use in commerce recorded in a registration carries real legal weight in disputes. An intent-to-use applicant can secure a priority date as of their filing date, but that priority only becomes effective once they follow through with a statement of use confirming actual commercial use.

Is displaying a mark at a trade show or in pre-launch advertising considered use in commerce?

Pre-launch advertising and trade show displays, standing alone, do not satisfy the use-in-commerce requirement because no actual sale or rendering of services has occurred. The mark must be used in connection with a genuine commercial transaction, goods sold or transported, or services actually rendered, not merely promoted or announced.

Why does the USPTO require use in commerce rather than just registration to establish trademark rights?

U.S. trademark law is built on a use-based system, meaning rights flow from actual commercial activity rather than from registration itself, a deliberate policy choice that ties trademark protection to real market presence rather than administrative filings. This structure prevents the kind of trademark warehousing that would allow businesses to lock up marks they have no genuine intention of using, thereby restricting competitors from adopting those marks in actual trade.