Before a U.S. application filed on an in-use or intent-to-use
basis may proceed to registration, the applicant must show that the
mark has been used in commerce. Being right about whether the mark
has been used in commerce is important. In fact, the validity of
the resulting registration may depend on it. Using a mark in
commerce means using it in commerce Congress may regulate.
Generally, this means using the mark in interstate commerce,
foreign commerce, or commerce with Native American tribes. If you
want more detail and citations to the statute, you can read this article.
Determining when and how to claim that a mark has been used in
commerce is sometimes easy. When someone has shipped goods bearing
the mark across state lines, there is use of the mark in commerce.
But sometimes deciding whether use of a mark rises to the level of
use in commerce is not so easy, especially when sales occur within
a single state. Recently, the Federal Circuit issued an opinion
that
