California Trademark FAQ: Is Your Product Eligible for a Trademark?

Owning a Federal trademark registration provides several advantages, including the ability to file a trademark lawsuit to protect the mark. In order to obtain that protection, applicants must be able to show current use of the mark in commerce, or their intent to use their mark in commerce in the future.

What Is Meant By “Commerce?”

The term “commerce” refers to all commerce that the U.S. Congress may lawfully regulate, including interstate commerce or commerce between the U.S. and another country. As detailed by the USPTO, “use in commerce” must be a bona fide use of the mark in the ordinary course of trade, and not use simply made to reserve rights in the mark.

Acceptable use includes the following:

  • For goods: the mark must appear on the goods, the container for the goods, or displays associated with the goods, 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 be rendered in commerce.

What If I am Already Using the Mark?

If you have already started using the mark in commerce, you may file a “use” based application. It must include a sworn statement that the mark is in use in commerce, including the date of first use of the mark anywhere and the date of first use of the mark in commerce. The application should also include a specimen showing use of the mark in commerce

How I Can Help

Of course, there are many other factors that must be considered before formally filing a trademark application. Therefore, it is often advisable to consult with an experienced trademark attorney such as myself.


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