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 examples of use they submitted (referred to as “specimens”) are insufficient or improper. This 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.
One of the questions I hear most as a trademark attorney is “What is use in commerce?” The concept of “use in commerce” is vitally important in US trademark law, especially with regard to federal trademark registration. Needless to say, the “use in commerce” definition is something all trademark applicants should be aware of.
If you filed your trademark application on an intent to use basis (i.e. your trademark was not in use on the application filing date), you must prepare and submit the Statement of Use before the United Stares Patent and Trademark Office (USPTO) will grant registration of your trademark. The Statement of Use is basically 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. 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 a proper specimen showing actual use of your trademark.