Use in commerce is the event that creates U.S. trademark rights. The statutory definition in 15 U.S.C. § 1127 is narrow and deliberate: it means the bona fide use of a mark in the ordinary course of trade, and not use made merely to reserve a right in a mark. Rights follow real commercial activity, not registration paperwork and not an announcement that you intend to sell something someday.
The practical consequence is that a federal application is a claim about the world, and the USPTO makes you prove it with a specimen, meaning a piece of evidence showing the mark operating in the marketplace exactly as claimed. Most avoidable application failures are specimen failures.
Section 1127 splits the test by what you sell.
For goods, two things must both be true. The mark has to be placed on the goods, their containers, the tags or labels affixed to them, or the displays associated with them, or on documents associated with the goods if the nature of the goods makes placement impracticable. And the goods have to be sold or transported in commerce. Advertising alone does not do it for goods. A brochure showing your product is not a specimen; a photograph of the label on the product is.
For services, the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in commerce. Here advertising is the right kind of evidence, but it only counts if the service is actually being performed. That second half is where applicants get destroyed. In Couture v. Playdom, Inc. (Fed. Cir. 2015), the applicant put up a single webpage advertising services and filed a use-based application the same day. He had not yet performed the services for anyone. The Federal Circuit affirmed cancellation and held the registration void from the start. The offer was not the use.
Aycock Engineering v. Airflite (Fed. Cir. 2009) reached the same place from a different angle: an air-taxi service that was advertised and prepared for, but never actually delivered to a customer, produced no registrable use no matter how much groundwork was laid.
“Bona fide” screens out shams, not small businesses. Courts have been clear that the quantity of commerce can be modest.
In Christian Faith Fellowship Church v. adidas AG (Fed. Cir. 2016), a church sold two hats bearing the mark to an out-of-state buyer. The TTAB called that de minimis and cancelled. The Federal Circuit reversed, reasoning that because Congress can regulate even purely local activity that in the aggregate affects interstate commerce, a small but genuine sale is still use in commerce. Two hats were enough.
What fails is not small volume, it is fake volume. Shipping a box to your cousin so you can photograph the label, or making one nominal sale timed to a filing deadline with no business behind it, is the token use the statute names and excludes.
A U.S. application rests on one of two domestic filing bases.
A 1(b) application does not skip proof, it defers it. After the mark clears examination and publication, the USPTO issues a notice of allowance, and you then have six months to file a statement of use with a specimen. Extensions come in six-month increments with fees, up to a maximum of 36 months from the notice of allowance. Miss the window and the application goes abandoned.
The trap in 1(b) is filing a broad goods list, then never using the mark on most of it. You cannot register what you never used. You must delete the unused items before the statement of use, and deleting them is far cheaper than the alternative.
The examining attorney is asking one question: does this show consumers encountering the mark at the moment they identify the source?
Goods that pass: a photo of the mark on the product itself, on the hangtag, on the neck label, on the retail box, or on a shelf display at the point of sale.
Webpage specimens are accepted for goods only if the page functions as a point of sale. It must show the mark in association with the goods along with ordering information, typically a price and an add-to-cart or order control, and the submission must include the URL and the date accessed. A page that merely shows the product with a “contact us for details” line is advertising, not a display associated with the goods, and is refused.
Services that pass: website pages, brochures, signage, or social profiles that show the mark and make the service clear. If the material shows the mark but never says what you do, the examiner cannot connect it to your identified services and it fails.
What is never acceptable: digitally created mockups, printer’s proofs, renderings, or artwork pasted onto a product image. The USPTO’s post-registration audit program and its digital-specimen scrutiny exist largely because of fabricated evidence.
Apparel applicants run into this constantly. A large logo across the chest of a t-shirt, or a slogan sprawled over the front of a hoodie, is generally treated as decoration rather than a source identifier. Consumers buy that shirt because they like the design, not because the design tells them who made it. Registration is refused because the matter is ornamental, not because it is unattractive. The TTAB applied this in In re Lululemon Athletica Canada Inc. (TTAB 2013), where a prominent wave design on jackets failed as ornamentation.
The usual cures: submit a specimen showing the same mark on a neck label, a hangtag, or the packaging, where consumers expect source information to live; show the mark is a secondary source indicator already registered for other goods; or prove acquired distinctiveness, which for a new brand is rarely available.
Every specimen and use claim is signed under a declaration warning that willful false statements are punishable and can jeopardize the registration. Fraud on the USPTO is a ground to cancel a registration entirely, including for goods where use was genuine.
The standard is high. In In re Bose Corp. (Fed. Cir. 2009), the court rejected the “should have known” test the Board had been applying and held that fraud requires a knowing, willful intent to deceive, proved by clear and convincing evidence. Negligence, or even gross negligence, is not fraud.
That is not permission to be careless. An honest mistake found late still means deleting goods, refiling, or losing your priority date, and the audit program is now designed to find exactly this. Claim only what you sell.
What does trademark use in commerce mean? Under 15 U.S.C. § 1127, use in commerce means the bona fide use of a mark in the ordinary course of trade, and not use made merely to reserve a right in the mark. For goods, the mark must appear on the product, its container, its tags or labels, or its displays, and the goods must be sold or transported in commerce. For services, the mark must be used or displayed in the sale or advertising of the services, and the services must actually be rendered.
What is the difference between a 1(a) and a 1(b) trademark application? A Section 1(a) application claims actual use already made in commerce and requires a specimen at filing. A Section 1(b) application claims a bona fide intent to use the mark and defers proof. A 1(b) application cannot register until the applicant files a statement of use with a specimen, due within six months of the notice of allowance and extendable in six-month increments up to 36 months.
What is an acceptable trademark specimen? For goods, a photograph of the mark on the product, its packaging, its tags or labels, or a point-of-sale display, plus, for webpage specimens, a URL, an access date, and visible ordering information such as a price and an add-to-cart control. For services, advertising or marketing material that shows the mark and makes clear what service is being offered. Digitally created mockups and printer’s proofs are not acceptable.
Why was my specimen refused as ornamental? A large logo across the chest of a shirt or the face of a mug is generally read as decoration that consumers see as part of the product’s design, not as an indicator of who made it. Trademark law protects source identifiers, so ornamental matter is refused under 15 U.S.C. §§ 1051, 1052, and 1127. Common fixes are submitting a specimen showing the mark on a neck label, hangtag, or packaging, or claiming acquired distinctiveness.
Going further: How to Trademark Your Business, step by step .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The Federal Circuit held a webpage lacking price and ordering information is mere advertising, not a point-of-sale display showing use in commerce.
The Federal Circuit held a single Tennessee restaurant serving interstate travelers satisfies the Lanham Act's use in commerce requirement for registration.
The Ninth Circuit holds that a rushed, litigation-driven app launch is not the bona fide use in commerce the Lanham Act demands, and Apple gets the MEMOJI registration cancelled.
Two clothing makers picked the same TIME OUT mark within weeks. The Fifth Circuit held that only genuine, public use in trade, not token shipments, establishes trademark priority.
A single in-state sale of two caps to an out-of-state buyer was enough use in commerce to defeat cancellation, as the Federal Circuit rejected a de minimis test for Lanham Act use.
Decades of planning an air-taxi reservation service could not satisfy the Lanham Act's use requirement, because the AIRFLITE service was never actually rendered to the public.
The Federal Circuit holds that advertising a service you have not yet performed cannot support a use-based service-mark registration, voiding the PLAYDOM mark ab initio.
