How to Prove Commercial Use of Your Product or Service

What does proof of commercial use mean in the context of a trademark application?

We get this question all the time. We often file trademarks for businesses that aren’t up and running based on an intent to use a trademark. The benefit of filing it on that intent to use, is that the priority date in the United States is the filing date of the application. So, another business can’t file a competing application after that date. Our client can then start getting the business operational and prove commercial use at a later point. However, they must prove this use before a registration will issue. This can be very confusing to a lot of clients, because they think they are commercially using a trademark by having a website, a domain, an LLC form, etc.

What qualifies as proof of commercial use for your product or service?

The USPTO requires that a product has been sold across state lines before commercial use of a trademark can be obtained. These sales must be legitimate, so they can’t have been made to a mom, best friend, or other people you know. It needs to be sales in the general course of business. Now, if you’re a service provider, typically you must engage in offering the service to clients that exist, preferably in more than one state. Once you can fulfill that requirement and show an advertisement for your services, you typically have use in commerce.

What happens if you submit a proof of commercial use to the USPTO that is incorrect?

However, you need to be very careful about this requirement and an attorney needs to make the judgment for you. If you file a proof of commercial use inappropriately, meaning that you don’t actually have commercial use, it can be a non-fixable error in your application. This would cause the complete refusal and loss of priority of your trademark. So, it’s an incredibly important point to get right, and it’s one that many people gloss over. If you want the registration to be valid, enforceable, and not initially refused by the government, you need to be sure you genuinely have a commercial use of your trademark.

If you have any questions, feel free to get in touch with me.

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Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.