The term "use in interstate commerce" is very unclear, and seems to be the most important factor in gaining the rights to a mark. Let's say for example a company called "Amazing Cracker" starts a facebook page, displaying pictures of their cracker and name together (and have a national following). Along with the online presence, "Amazing Crackers" has purchased several required industry licenses under their name, and has several documented communications with manufacturers and stores in the industry. Or let's say they register the domain "amazingcracker.com", and post a picture of the product and name. Does any of this activity count as "use in interstate commerce" ? Thank you for your advise!
It is not clear maybe form the statute, but there are court cases interpreting the phrase. Experienced TM attorneys are the people to look to for advise on these issues. We only set out general principles here, and do not decide cases.
Ask any of the attorneys listed under IP or trademarks in Avvo. Most offer a brief free consult, although a full analysis of all the facts, including gathering all the facts, will require paying a fee. It sounds like this will affect your wealth, so you ought to invest in getting the best advice you can on what if anything you can do.
Information here is general, does not create a lawyer-client relationship, nor a substitute for consulting with an experienced attorney on the specifics of your situation.
For detailed information, you can try the link below to the Trademark Manual of Examining Procedure (TMEP).
Generally, for a service first use begins when the service is available and is advertised in connection with the trademark.
However, for goods an advertisement will not suffice. The trademark must be used in connection with the sale of the product- on the product or its packaging or, if on a website, on an actual order page from which a customer can purchase the product directly.
No it does not. "Use in commerce" means you have a viable means to sell your product/service. A website with a purchasing section will suffice. A website displaying information but not allowing for purchases will be considered for information only and will need additional evidence of use in commerce, such as invoices and the like.
If you are selling your products, then it should not be difficult to provide evidence of commerce. If you are trying to start a business, then apply for intend to use. Consult a TM attorney who can guide you and avoid fraud on the USTTO, which is a serious Federal matter.
USPTO Registered Patent Attorney, Master of Intellectual Property law, MBA I am neither your attorney, nor my answers or comments in AVVO.com create an attorney-client relationship with you. You may accept or disregard my free advice in AVVO.com at your own risk. I am a Patent Attorney, admitted to the USPTO and to the Florida Bar.
"Use in commerce" for goods is simple. Have you sold at least one of the products? If you haven't sold any products, then you haven't made use of the mark. If you have sold one of the products, and the mark was affixed to that product, then you've made use in commerce. "Interstate commerce" just means you sold that at-least-one product to someone in another state.
It is only when you talk about "services" that "use in commerce" gets tricky. Since you are talking about an actual product, none of that other stuff (online advertising) constitutes "use in commerce."
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