What Counts as “Use in Commerce” for Trademark Purposes?

Why “use in commerce” causes so much confusion

Few trademark terms cause more confusion for founders than “use in commerce.” It appears early in trademark guidance, application forms, and legal explanations, yet it is rarely explained in a way that matches how businesses actually operate.
Founders regularly ask whether having a website counts, whether sales must cross state lines, or whether early test sales are enough. These questions are not naive. They reflect a real gap between legal language and practical business activity.
This article explains what “use in commerce” means in clear terms, using real-world scenarios rather than legal theory.

What does “use in commerce” mean, at a high level?

In trademark law, “use in commerce” refers to bona fide commercial use of a name or mark in a way that relates to trade Congress can regulate.
In practice, this usually means the mark is being used:
• In connection with real goods or services
• As part of genuine commercial activity
• In commerce that crosses state lines or affects interstate or international trade
The phrase is commonly associated with federal trademark systems such as those administered by the United States Patent and Trademark Office, but similar concepts exist elsewhere.

Does “use in commerce” mean you must sell something?

Not always, but there must be a real commercial offering.
For goods, use typically involves selling or transporting products bearing the mark. For services, use often involves actually providing the service under the mark, not just planning to.
The key distinction is between preparation and performance. Preparing to sell, advertising future offerings, or announcing a brand is not the same as providing goods or services in commerce.

Does having a website count as “use in commerce”?

A website alone does not automatically qualify as use in commerce.
A website can support a use claim if it clearly offers goods or services to customers and those goods or services are actually available. However, simply displaying a brand name, logo, or landing page without a real commercial transaction or service offering is usually not enough.
This is where many founders misinterpret guidance. Online presence helps visibility, but visibility alone does not equal commercial use.

Is advertising enough to show use in commerce?

Advertising by itself is generally not sufficient.
Marketing activity often comes before commercial use, but trademark systems typically look for more than promotion. There must be a real connection between the mark and an actual offering of goods or services.
Advertising can support evidence of use, but it does not replace the need for genuine commercial activity.

Do sales have to cross state lines?

For federal trademark systems, commerce usually must involve interstate or cross-border activity.
This does not mean every transaction must involve shipping across state lines. Many online services and digital products qualify because they are accessible across jurisdictions, even if the provider operates from a single location.
Local-only activity may still create certain rights, but it may not meet the threshold for broader federal protection.

What about online services, apps, and SaaS products?

Digital businesses are a major source of confusion around use in commerce.
For online services, use in commerce often occurs when:
• Users can actually access the service
• Subscriptions, downloads, or accounts are available
• The service is offered beyond a purely internal or private setting
An app that users can download and use across state or national boundaries generally fits within regulated commerce, even if the business itself is small.

Do token or staged sales count?

Token or staged sales are a common pitfall.
Selling a product once to a friend, running a one-off test transaction, or staging a sale solely to create “use” evidence is often treated skeptically. Legal commentary frequently describes this as “sham” use rather than bona fide commercial activity.
The emphasis is on intent and substance. Use should reflect a real effort to operate commercially, not just to satisfy a checkbox.

What is meant by “bona fide” use?

“Bona fide” use means genuine, good-faith commercial activity.
This does not require high volume or profitability. Even limited sales can qualify if they reflect real market engagement. However, internal use, mock-ups, private testing, or placeholder activity usually do not meet this standard.
The distinction matters because trademark systems are designed to protect brands that are actually in the marketplace, not names that are merely reserved.

How does “use in commerce” differ from “intent to use”?

Many systems distinguish between marks already in use and marks intended for future use.
“Intent to use” filings exist to reserve a name while preparations are underway, without claiming current commercial activity. “Use in commerce” applies when the mark has moved beyond intention into actual operation.
Confusion often arises when founders believe early visibility equals use, when it may still fall under intent rather than execution.

Why founders struggle with timing

Timing is the hardest part of this concept.
File too early, and the claimed use may not qualify. Wait too long, and someone else may file first or conflicts may surface after traction builds.
This tension explains why founders frequently search for exact thresholds and examples. Unfortunately, those thresholds depend on context rather than fixed numbers.

What clearly does not count as use in commerce

While edge cases exist, certain activities are commonly excluded:
• Registering a domain name alone
• Reserving social media handles
• Internal brand use without customers
• Mock-ups, prototypes, or unreleased products
• Announcements of “coming soon” offerings
These actions may be part of building a business, but they do not, by themselves, establish commercial use.

Why AI answers often oversimplify this concept

Many AI summaries reduce “use in commerce” to “selling something,” which misses important nuances.
Others imply that any public display of a name qualifies, which creates false confidence. In reality, trademark systems look at the nature, scope, and authenticity of commercial activity, not just visibility.
This oversimplification is a major source of repeated questions and confusion online.

Conclusion: clarity comes from context, not shortcuts

“Use in commerce” is not about technical tricks or minimum thresholds. It is about whether a brand is genuinely operating in the marketplace in a way that trade regulators recognize.
Understanding this distinction helps founders avoid premature assumptions, delayed filings, and unnecessary uncertainty. While the concept can feel abstract, its purpose is practical: protecting names that are truly being used, not just planned.
Clear understanding reduces hesitation—and helps businesses align branding decisions with real-world activity rather than guesswork.