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Federal trademark registration requires transportation of goods across state lines (interstate commerce) with the mark displayed on the goods or their packaging. Trademark registration is regulated by the federal government per the U.S. Constitution’s commerce clause which allows federal regulation of a state’s interstate commerce.

For federal registration, “commerce” means all commerce the U.S. Congress may lawfully regulate, e.g., interstate commerce or commerce between the U.S. and another country. “Use in commerce” must be a bona fide use of the mark in the ordinary course of trade, and not a token use simply made to reserve rights in the mark.

Acceptable use for goods and services include:

  • for goods: the mark must appear on the goods, the goods’ container, or on displays associated with the goods & the goods must be sold or transported in commerce; and
  • for services: the mark must be used or displayed in the sale or advertising of the services & the services must be rendered in commerce.

Applications based on “use in commerce” must include:

  • a statement that the mark is in use in commerce (as defined by 15 USC §1127) and was in use in such commerce on or in connection with the goods or services listed in the application, as of the application filing date;
  • the date of the applicant’s first use (anywhere) of the mark on or in connection with the goods or services;
  • the date of the applicant’s first use of the mark in commerce as a trademark or service mark; and
  • one specimen for each class showing how the applicant actually uses the mark in commerce. If the specimen is not filed with the initial application, the applicant must submit a statement attesting that the specimen was used in commerce at least as early as the application filing date. These statements must be verified by the applicant, i.e., supported either by an affidavit or a declaration under 37 CFR §§2.20 & 2.33 [Trademark Act Section 1(a), 15 USC §1051(a); 37 CFR §§2.34(a)(1) & 2.59(a); TMEP §806.01(a)].

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