Do trademarks have to be used in commerce?
What is use in commerce? To establish trademark rights in the US, a trademark owner generally must be the first to use a mark in commerce on particular goods or services. There are a few exceptions to this general rule such as when the applicant owns a foreign registration or files an Intent-To-Use application.
What constitutes first use in commerce?
A date of first use in commerce is the date when (1) the goods were first sold or transported, or the services were first rendered, under the mark in a type of commerce that may be lawfully regulated by the U.S. Congress (such as interstate commerce or commerce between the United States and a foreign country), and (2) …
What is trademark use?
In other words, trademarks serve to identify a particular entity as the source of goods or services. The use of a trademark in this way is known as trademark use. Certain exclusive rights attach to a registered mark.
What are first use rights?
first to file. In the United States, it is not registration, but actual use of a designation as a mark that creates rights and priority over others. Thus, the rule is that ownership of a mark goes to the first-to-use, not the first-to-file.
How can trademark rights be lost?
The Loss of Trademark Rights You can lose a mark through abandonment. A mark will be considered abandoned if you stop using it for three consecutive years and you have no intent to resume its use. You can also lose a mark through improper licensing or improper assignment. Some trademarks become generic as time passes.
What constitutes a trademark first use in commerce?
So, the first use in commerce date is really the first date that you placed your mark on your goods or you made sales in advertising and marketing in connection with your particular services. So, keep in mind, it cannot be a token use merely for the purposes of establishing trademark rights.
Do you need proof of first use of trademark?
The United States Trademark and Patent Office (USTPO) does not require proof of the date when you first used the mark in commerce, but it does require proof of the mark in use. For example, the USPTO does not require that you submit an invoice showing the date of first sale, but you should keep a copy of such a document for your records.
How to determine the first use in commerce date?
Ultimately, a trademark attorney can assist you in determining what the actual first use in commerce date is. However, in the event that you’re trying to make that determination on your own, keep in mind, again, the two requirements.
What do you need to know about trademark infringement?
Thus, “use,” “in commerce,” and “likelihood of confusion” are three distinct elements necessary to establish a trademark infringement claim. “Use” of a trademark by an alleged infringer must be established as a threshold matter. Any number of activities may be “in commerce” or may create a “likelihood of confusion.”
What do you need to know about trademark use in commerce?
Your federal trademark application will require you to note the date you first used the mark, as well as a later date when it was first used in commerce. What is considered use in commerce will depend if your trademark will cover products or services.
The United States Trademark and Patent Office (USTPO) does not require proof of the date when you first used the mark in commerce, but it does require proof of the mark in use. For example, the USPTO does not require that you submit an invoice showing the date of first sale, but you should keep a copy of such a document for your records.
Ultimately, a trademark attorney can assist you in determining what the actual first use in commerce date is. However, in the event that you’re trying to make that determination on your own, keep in mind, again, the two requirements.
What is a proof of use in commerce?
What is considered use in commerce will depend if your trademark will cover products or services. For products, proof of use in commerce could include: Advertising and marketing materials alone are not considered proof of commercial use for products.