use in commerce: Intellectual Property Terminology Explained

Glossary, Patent Law and Patent Bar Review

In the world of commerce, understanding intellectual property is crucial. Intellectual property refers to creations of the mind, such as inventions, literary and artistic works, names, symbols, and designs used in commerce. Protecting intellectual property is essential for businesses to maintain a competitive edge and safeguard their innovations. To comprehend the complexities of intellectual property, it is important to delve deeper into the concept of “use in commerce” and its impact on different types of intellectual property rights.

Understanding Intellectual Property: A Brief Overview

The Importance of Intellectual Property:

Intellectual property plays a vital role in fostering innovation and economic growth. It encourages businesses and individuals to invest time, effort, and resources into developing new ideas, products, and services. By granting exclusive rights to creators and inventors, intellectual property protection ensures they can reap the rewards of their labor, boosting motivation for further innovation.

Intellectual property rights not only provide incentives for innovation but also enable businesses to establish a competitive advantage in the market. When a company holds exclusive rights to a particular invention, design, or brand, it can prevent others from using or imitating their intellectual property without permission. This exclusivity allows businesses to differentiate themselves from competitors, attract customers, and generate revenue.

Different Types of Intellectual Property:

Intellectual property encompasses various categories, including trademarks, patents, copyrights, and trade secrets. Each type of intellectual property protects distinct creations, granting exclusive rights to the owner for a specified period. Understanding these different types is crucial for businesses to effectively protect and manage their intellectual property assets.


A trademark is a recognizable sign, design, or expression that distinguishes products or services of a particular source from those of others. It can be a word, logo, symbol, or combination thereof. Trademarks play a crucial role in branding and marketing strategies, helping businesses build a strong reputation and customer loyalty. By registering a trademark, companies can prevent others from using similar marks that may cause confusion among consumers.


A patent grants exclusive rights to inventors for their inventions, such as new products, processes, or technologies. It provides legal protection, preventing others from making, using, selling, or importing the patented invention without permission. Patents encourage innovation by rewarding inventors with a temporary monopoly on their creations, giving them the opportunity to recoup their investment and profit from their invention.


Copyrights protect original works of authorship, such as literary, artistic, musical, or dramatic creations. This includes books, songs, paintings, sculptures, software, and more. By obtaining copyright protection, creators have the exclusive right to reproduce, distribute, display, perform, and modify their works. Copyrights not only protect the rights of creators but also promote creativity by providing an incentive to produce and share original content.

Trade Secrets:

Trade secrets refer to confidential and valuable information that gives a business a competitive edge. This can include formulas, processes, customer lists, marketing strategies, and other proprietary information. Unlike other types of intellectual property, trade secrets do not require registration. Instead, they rely on maintaining secrecy to retain their value. Companies use various measures, such as non-disclosure agreements and restricted access, to protect their trade secrets from unauthorized disclosure or use.

By understanding the different types of intellectual property and the rights they confer, businesses can strategically protect their innovations, creations, and valuable information. Implementing effective intellectual property management strategies ensures that companies can safeguard their competitive advantage, foster innovation, and contribute to economic growth.

Defining ‘Use in Commerce’ in Intellectual Property Context

The Role of ‘Use in Commerce’ in Trademark Law:

In trademark law, the term ‘use in commerce’ refers to the actual utilization of a trademark in connection with goods or services in commerce. Registering a trademark requires evidence of its use in commerce, demonstrating that it identifies and distinguishes the goods or services of the owner from those of others.

Practical Examples of ‘Use in Commerce’:

‘Use in commerce’ can take numerous forms, including the sale or advertising of goods or services bearing the trademark, or the transportation or storage of goods under the trademark. Examples of ‘use in commerce’ can vary depending on the industry and the specific goods or services being offered.

When it comes to the sale of goods, ‘use in commerce’ can refer to the act of selling products that bear the trademark. For instance, if a company manufactures and sells clothing items with a particular logo, the act of selling those items to customers would be considered ‘use in commerce’.

In addition to the sale of goods, ‘use in commerce’ can also encompass the advertising and promotion of the trademarked products or services. This can include various marketing activities such as print advertisements, television commercials, online campaigns, and social media promotions. By actively promoting the trademarked goods or services, companies demonstrate their ‘use in commerce’ and establish a connection between the trademark and the products or services being offered.

Furthermore, ‘use in commerce’ extends beyond just the act of selling or advertising goods. It can also involve the transportation or storage of goods under the trademark. For example, if a company is involved in the shipping and distribution of products that bear the trademark, such as a logistics company, their involvement in the transportation process would be considered ‘use in commerce’.

It is worth noting that the specific examples of ‘use in commerce’ can vary depending on the industry and the nature of the goods or services being offered. For instance, in the technology sector, ‘use in commerce’ may involve the licensing or distribution of software products, while in the food industry, it may refer to the packaging and distribution of food products bearing the trademark.

In conclusion, ‘use in commerce’ plays a crucial role in trademark law as it establishes the connection between a trademark and the goods or services it represents. Through various activities such as selling, advertising, and transportation, companies demonstrate their ‘use in commerce’ and strengthen their claim to the trademark.

How ‘Use in Commerce’ Affects Intellectual Property Rights

Intellectual property rights play a crucial role in protecting various forms of creativity and innovation. Among these rights, the concept of ‘use in commerce’ holds significant importance, particularly in the realms of trademark registration and protection.

Impact on Trademark Registration and Protection:

When it comes to trademark registration in the United States, the requirement of ‘use in commerce’ cannot be overlooked. It serves as a fundamental criterion for obtaining federal trademark registration. Applicants must demonstrate evidence of commercial activity associated with the mark to establish ‘use in commerce’.

By requiring proof of ‘use in commerce,’ the United States Patent and Trademark Office (USPTO) aims to ensure that trademarks are not merely ideas or concepts but are actively used in the marketplace. This requirement helps prevent the registration of marks that are not genuinely intended for commercial purposes.

Failure to prove ‘use in commerce’ can have serious consequences for trademark applicants. It can lead to the denial of a trademark registration or even the cancellation of an existing registration. This emphasizes the significance of demonstrating a genuine and ongoing commercial use of the mark.

‘Use in Commerce’ and Patent Rights:

While ‘use in commerce’ predominantly relates to trademarks, the realm of patents operates differently. Patents provide inventors with exclusive rights to make, use, and sell their inventions for a limited period. However, unlike trademark registration, ‘use in commerce’ is not a requirement for obtaining a patent.

Instead, the patent system primarily focuses on ensuring the novelty, usefulness, and non-obviousness of an invention. This means that inventors can obtain patent protection for their creations without having to demonstrate actual commercial use.

However, it is important to note that obtaining a patent does not automatically grant the right to use the invention in commerce. Once a patent is granted, the inventor must actively engage in commercializing the invention to reap the benefits of their exclusive rights.

Furthermore, while ‘use in commerce’ may not be a prerequisite for obtaining a patent, it becomes relevant when inventors seek to enforce their patent rights. In patent infringement cases, the alleged infringer’s use of the patented invention in commerce becomes a crucial factor in determining the scope of the inventor’s rights and potential damages.

In conclusion, ‘use in commerce’ significantly impacts intellectual property rights, especially in the context of trademark registration and protection. It serves as a vital requirement for obtaining federal trademark registration and ensures that trademarks are actively used in the marketplace. While not directly applicable to patents, ‘use in commerce’ becomes relevant when enforcing patent rights against infringers. Understanding the implications of ‘use in commerce’ is essential for individuals and businesses seeking to protect their intellectual property.

Common Misconceptions about ‘Use in Commerce’

Misunderstanding the Term ‘Commerce’:

One common misconception is the limited understanding of ‘commerce’ itself, which is not constrained solely to the exchange of goods for monetary value. Commerce encompasses a wide range of activities related to the trade and distribution of goods and services, including online transactions, advertising, transportation, and communication.

For example, when someone thinks of commerce, they might envision a simple transaction at a physical store where money is exchanged for a product. However, commerce goes beyond this traditional notion. In today’s digital age, online transactions have become increasingly common, with people buying and selling products and services through e-commerce platforms. Additionally, advertising plays a crucial role in commerce as it helps businesses reach their target audience and promote their offerings.

Moreover, commerce involves not only the exchange of tangible goods but also the distribution of services. These services can range from professional consultations to entertainment experiences. For instance, a person hiring a lawyer or attending a concert is engaging in commercial activities that fall under the umbrella of commerce.

Misconception about the ‘Use’ Aspect:

Another misconception is that ‘use in commerce’ solely involves the physical utilization of a trademark. However, ‘use’ in this context also includes activities such as advertising, promotion, and offering services under the trademark. It encompasses the commercial activities that give the trademark its distinctiveness and value.

To further illustrate this point, let’s consider a hypothetical scenario. Imagine a company that manufactures and sells sports equipment under a specific brand name. The company not only physically produces the equipment but also invests in advertising campaigns to create brand awareness and attract customers. They promote their products through various channels, such as television commercials, online advertisements, and social media campaigns. All these marketing efforts contribute to the ‘use in commerce’ of their trademark, as they are actively engaging in commercial activities to promote their brand and products.

Furthermore, ‘use in commerce’ extends beyond advertising and physical utilization. It also includes offering services under a particular trademark. For instance, a restaurant chain may have a distinctive logo and brand name. When customers visit the restaurant and enjoy the dining experience, they are engaging in a commercial transaction that involves the use of the trademark. The restaurant’s reputation and the quality of its services contribute to the overall value of the trademark in commerce.

In conclusion, it is crucial to understand that ‘commerce’ encompasses a broad spectrum of activities beyond the simple exchange of goods for money. Similarly, ‘use in commerce’ involves not only the physical utilization of a trademark but also advertising, promotion, and offering services under the trademark. By expanding our understanding of these terms, we can grasp the full scope of their significance in the business world.

Legal Implications of ‘Use in Commerce’

Potential Legal Disputes and How to Avoid Them:

The concept of ‘use in commerce’ can lead to legal disputes, particularly in trademark law. Competitors may challenge the validity of a trademark registration by questioning the evidence of ‘use in commerce.’ To avoid such disputes, businesses should ensure sufficient documentation and continuous commercial activity associated with their trademarks.

Legal Precedents Related to ‘Use in Commerce’:

Over the years, numerous legal precedents have shaped the interpretation and application of ‘use in commerce.’ Courts have provided invaluable guidance on what constitutes valid ‘use in commerce’ and how it should be established in different scenarios. Familiarizing oneself with relevant legal precedents is essential in understanding the complexities of intellectual property law in relation to ‘use in commerce.’

In conclusion, comprehending the terminology and concepts surrounding intellectual property is crucial for businesses. ‘Use in commerce’ holds significant importance in relation to trademark registration and protection, although it may not hold the same implications for other types of intellectual property rights. Avoiding common misconceptions and understanding the legal implications of ‘use in commerce’ can help businesses better protect their intellectual property assets and avoid potential disputes.