Trademark law can be complex and confusing, especially when it comes to the requirements for obtaining and maintaining a trademark. One important concept in trademark law is the requirement for “use in commerce,” which refers to the actual use of a mark in the sale or transportation of goods or services. The definition of “use in commerce” was amended by the Trademark Law Revision Act of 1988 (TLRA) to include the phrase “the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark.” This amendment was primarily intended to eliminate the practice of “token use,” or using a mark solely to reserve rights in that mark without any real intent to use it in business.
The TLRA’s legislative history makes it clear that the meaning of “use in the ordinary course of trade” will vary from one industry to another. For example, an industry that sells expensive or seasonal products may make infrequent sales, but these sales would still be considered “in the ordinary course of trade.” Similarly, a pharmaceutical company that markets a rare disease treatment may make few sales, but these sales would still be considered “in the ordinary course of trade” because they are part of the company’s business.
There are several factors to consider when determining whether a mark is being used in the “ordinary course of trade.” These include the amount of use, the nature or quality of the transaction, and what is typical use within a particular industry. For example, in the case of Automedx Inc. v. Artivent Corp., the sale of demonstration models of portable medical ventilators to the military was found to be a “bona fide use of a mark in commerce.” On the other hand, in the case of Clorox Co. v. Salazar, the applicant was found to have not made “bona fide use of its mark in commerce” because it had not sold or transported goods bearing the mark in commerce as of the application filing date.
Overall, it is important to understand the requirements for “use in commerce” in order to properly obtain and maintain a trademark. This includes considering the specific industry and the nature of the business, as well as the amount and quality of use. By following these guidelines, businesses can ensure that they are using their marks in a way that is consistent with trademark law and will be protected under the law. Speak with a trademark attorney today to learn the full details of use in commerce for trademarks at 1-800-TUCKERWINS.
