What is Required to Establish Use of a Trademark?
“Use” of a mark is an important issue for many reasons, including that the first date of use establishes a potential date of priority, and also determines whether a federal trademark application should be filed on the basis of intent to use or actual use. For a mark that is identified with goods, generally speaking use of a trademark commences when the mark is displayed in connection with the goods and the goods are reasonably available for purchase according to industry standards. Thus, for a downloadable software product, acceptable use includes the product being deliverable on a CD or at a point of download with the mark displayed on the CD (or packaging for the same) or at the point of download. Generally speaking, if the product is not available to deliver to the relevant consumer, use of the trademark likely has not commenced. For example, use of the trademark in pitch presentations alone does not constitute use. For a service mark, acceptable use of a mark includes advertising or marketing materials displaying the mark and a description of the services.