The 2 Flavors of Trademark Applications
A common question of inventors, developers and business owners is when to register a trademark. Many carry the misconception that it is not possible to register a trademark until the product or service is sold. Actually, it is proper to file a trademark application under two circumstances:
- Use In Commerce: The mark is being used in the ordinary course of trade, not simply to reserve rights in the mark. Generally, acceptable use is as follows:
- For goods: the mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce. Websites may be considered displays for goods and services if the site fits certain requirements.
- For services: the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in commerce.
- Intent to use: U.S. trademark law allows filing of trademark applications to protect (or reserve) trademarks which are not yet in use. In order to do so, the registrant must have the genuine (“bona fide”) intent to use the mark in interstate commerce. When a trademark is filed on an “intent to use” basis, the registrant has six (6) months in which to verify actual use and submit a specimen. Under proper circumstances this period may be extended up to two years.