One Sale Meets The Lanham Act's "Use In Commerce" Requirement

On November 14, 2016, the Federal Circuit held that a single sale of two hats is sufficient to meet the Lanham Act's "use in commerce" requirement for trademark registration, potentially contravening longstanding jurisprudence on "token use."

Christian Faith Fellowship Church began selling caps and shirts emblazoned with the phrase "Add A Zero" in January 2005.  In February of the same year, the Church made one sale of two ADD A ZERO-marked hats to an out-of-state resident, and in March, the Church applied for federal registration of the ADD A ZERO mark. 

In 2009, Adidas sought a clothing trademark for ADIZERO, but the USPTO refused its application based on the Church's ADD A ZERO marks. Adidas then sought to cancel the Church's marks arguing, among other things, that the Church had failed to use the marks in commerce prior to registration. The Board agreed, finding the Church's February 2005 sale to be de minimus and not sufficient to satisfy the "use in