Proof of use for trademark registration is something that’s often misunderstood by people who choose to file their own trademark applications. It’s not uncommon for people to contact me after receiving a trademark office action from the United States Patent and Trademark Office (USPTO) indicating that registration of their trademark is being refused because the proof of use they submitted (referred to as “specimens”) is insufficient or improper. This trademark specimen refusal causes significant delays in registering their trademark and, in some cases, can even lead to their trademark application going abandoned and having to start the trademark registration process all over again.
Use in commerce is vitally important in US trademark law, especially with regard to registering a trademark with the United States Patent and Trademark Office (USPTO). The definition and meaning of use in commerce is something all trademark applicants should fully understand because it can greatly affect the validity of a trademark application and any resulting trademark registration.
The Statement of Use is a sworn declaration that your trademark is currently in use in commerce in connection with all of the products and/or services listed in your trademark application. If you filed your trademark application under Section 1(b) (intent to use), you must prepare and submit the Statement of Use before the United States Patent and Trademark Office (USPTO) will grant registration of your trademark. As part of the Statement of Use, the USPTO requires you to (1) set forth the date on which your trademark was first used anywhere in the United States, (2) set forth the date on which your trademark was first used in interstate commerce, and (3) submit at least one specimen showing actual use of your trademark per class of products/services listed in your application.