How the U.S. “Use in Commerce” Requirement Works for Trademarks

For many entrepreneurs entering the United States market, trademark registration is an important step in protecting their brand. However, one concept that frequently causes confusion — especially for international founders — is the U.S. requirement that a trademark must be used in commerce.

Unlike some jurisdictions where trademarks can be registered based only on an application, U.S. trademark law generally requires proof that the mark is being used in connection with goods or services in commerce that Congress can regulate.

Understanding how this requirement works is essential for anyone seeking trademark protection in the United States.

The Legal Basis for “Use in Commerce”

The concept of “use in commerce” comes from the Lanham Act, the federal statute governing trademarks in the United States.

Under the law, a mark is considered to be used in commerce when:

  • it is placed on goods, packaging, labels, or displays associated with the goods and those goods are sold or transported in commerce; or

  • it is used in the sale or advertising of services and the services are actually rendered in commerce.

Guidance explaining these requirements is provided by the United States Patent and Trademark Office in its trademark examination procedures.

This means that a trademark cannot simply exist on paper. There must be real commercial activity connected to the mark.

Two Ways to File a U.S. Trademark Application

When applying for a trademark with the USPTO, applicants generally file under one of two bases:

Use-Based Applications

A use-based application is filed when the trademark is already being used in commerce in connection with goods or services.

In these cases, the applicant must provide:

  • the date the mark was first used anywhere

  • the date the mark was first used in commerce

  • a specimen showing how the mark is used in the marketplace

According to the USPTO, the specimen must demonstrate the mark as consumers actually encounter it in commerce.

Intent-to-Use Applications

An intent-to-use application allows an applicant to apply for a trademark before the mark is actually used in commerce.

This filing basis recognizes that businesses may want to secure trademark rights while preparing to launch a product or service.

However, registration will not be granted until the applicant later demonstrates actual use of the mark.

To complete the process, the applicant must submit a Statement of Use with proof that the mark is being used in commerce.

What Is a Trademark Specimen?

A specimen is evidence showing how the trademark is used in the marketplace.

The United States Patent and Trademark Office explains that acceptable specimens depend on whether the mark is used for goods or services.

Examples for goods may include:

  • product packaging

  • labels or tags

  • screenshots of online product listings where the goods can be purchased

Examples for services may include:

  • website pages advertising the services

  • marketing materials

  • signage associated with the service

The key requirement is that the specimen must demonstrate actual commercial use of the mark, not simply a decorative or promotional display.

The Role of the Statement of Use

For intent-to-use applications, the final step before registration is submitting a Statement of Use.

This filing confirms that the mark is now being used in commerce and must include:

  • the date of first use in commerce

  • a specimen showing the mark in use

  • a declaration verifying that the information is accurate

If the applicant is not yet ready to show use in commerce, the USPTO allows extensions of time to file the Statement of Use, subject to statutory limits.

These procedures are described in guidance issued by the United States Patent and Trademark Office.

Why the Requirement Matters for International Businesses

Entrepreneurs from outside the United States sometimes assume that trademark registration works the same way globally. However, the U.S. trademark system places strong emphasis on actual commercial use.

This means:

  • businesses must be prepared to demonstrate real marketplace use of the mark

  • specimens must reflect genuine commercial activity

  • registration cannot be finalized until use requirements are satisfied

Because of these rules, careful planning is often required when launching a brand in the United States.

The U.S. trademark system is built around the principle that trademark rights arise from use of a mark in commerce, not merely from filing an application.

For businesses seeking protection in the United States, understanding the difference between use-based filings, intent-to-use applications, specimens, and Statements of Use is essential.

These requirements, established under the Lanham Act and implemented by the United States Patent and Trademark Office, ensure that registered trademarks reflect marks that are actively used in the marketplace.

Guest User