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121 Alhambra Plaza, Suite 1500 Coral Gables, FL 33134
+1 (305) 489 1901
Our office hour: Mon - Fri
09.00am - 05.00pm
Last month, we discussed why registering a trademark is not the end of protecting your brand. Continued use matters.
But that raises an important question:
Many business owners assume that having a website, purchasing a domain name, posting on social media, or creating promotional materials means their trademark is “in use.”
For federal trademark purposes, however, not every appearance of a brand qualifies as use in commerce.
Understanding the difference is important when applying for a trademark, maintaining a registration, and protecting your trademark rights.
In general, trademark use should be genuine use in the ordinary course of business—not activity created simply to reserve rights in a name or logo.
What that looks like depends on the type of business and whether the trademark identifies products or services.
The simplest question to ask is:
How are customers actually encountering your trademark in the marketplace?
For products, a trademark may appear on:
The products must also actually be sold or transported in commerce.
For example, if you sell coffee, clothing, cosmetics, or other consumer products, customers may encounter your trademark directly on the product, its packaging, or through an online store where the branded product can actually be purchased.
Services work differently.
A trademark can appear on a website, advertising, or other materials promoting the services, but the services must actually be provided in commerce.
Announcing a future service is not necessarily the same as actually providing that service.
It can—but not every website does.
For products sold online, a strong example of use typically creates a clear connection between:
Think of a product page where customers can see the trademark, identify the product, and click “Add to Cart” or “Buy Now.”
By contrast, a webpage that simply talks about a future product or promotes it without offering a way to purchase it may not establish the same type of trademark use.
Depending on the circumstances, these activities alone may not establish trademark use for particular goods:
❌ Reserving a domain name.
❌ Posting a “Coming Soon” announcement.
❌ Advertising a product that is not yet available.
❌ Creating promotional materials without actual commercial activity.
❌ Digitally placing a trademark on a product merely to show how it might look.
This last point is particularly important.
Technology makes it easy to create a professional-looking product image.
A business can take a photograph of packaging, digitally add a new logo, and create an image that looks completely authentic.
But looking real is not the same as being real commercial use.
Evidence submitted to support trademark use should reflect how the mark is genuinely being used in the marketplace—not how the business plans to use it someday.
Businesses should develop the habit of preserving evidence of how their trademarks are actually used.
Depending on the business, that could include:
📦 Photographs of product packaging
🏷️ Labels and tags
🛒 Online product pages
💻 Website pages promoting services actually being provided
📸 Photographs showing the mark in the marketplace
Keeping good records can become especially important when it is time to register or maintain a trademark.
Take a moment to ask:
1. Are we actually selling products or providing services under this trademark?
2. How do customers encounter the trademark?
3. Does our website clearly connect the trademark with our products or services?
4. Do we have genuine evidence showing our current use?
5. Does our current use match the products or services covered by our trademark registration?
If you’re unsure about the answers, it may be time to review how your trademark is being used.
Last month, our message was:
This month, we add another:
A strong trademark strategy involves more than obtaining a registration. Businesses should understand how their marks are being used, preserve evidence of that use, and periodically confirm that their registrations continue to reflect the reality of the business.
If you’re preparing to file a trademark application, submit evidence of use, maintain an existing registration, or aren’t sure whether your current use is sufficient, consider reviewing the issue before a problem arises.
Augusto Perera Intellectual Property Law assists businesses with trademark registration, statements of use, maintenance and renewals, portfolio reviews, and brand protection strategies.
Schedule a Trademark Use and Portfolio Review
This article provides general information and does not constitute legal advice. Whether particular activity qualifies as trademark use depends on the specific circumstances.
