1301.03(b) Rendering of Service in Commerce Regulable by Congress
In an application under §1(a) or §1(b) of the Trademark Act, 15 U.S.C. §1051(a) or §1051(b), the applicant must use the mark in the rendering of the services in commerce before a registration may be granted. Couture v. Playdom, Inc., 778 F.3d 1379, 1380-82, 113 USPQ2d 2042, 2043-44 (Fed. Cir. 2015) (holding that appellant’s use of the mark on a webpage, which included the notice "website under construction," was not sufficient to show use in commerce where evidence showed appellant advertised his readiness to render the services but did not actually provide them on or before the use-based application filing date); In re Suuberg, 2021 USPQ2d 1209, *5-8 (TTAB 2021) (holding that applicant’s preparatory measures to commence use of her mark for charitable services, such as incorporating and applying for tax-exempt status, registering her domain name, and building her website were not sufficient to show applicant actually used the mark in commerce to provide services on or before the use-based application filing date).
Section 45, 15 U.S.C. §1127, defines "commerce" as "all commerce which may lawfully be regulated by Congress." See TMEP §§901.01, 901.03.
The following are three examples of how a service may be rendered in commerce: (1) the applicant’s services are rendered across state lines; (2) customers come across state lines in response to advertising for the services; and (3) the applicant’s licensees or franchisees who use the mark are located in more than one state. See TMEP §901.03 and cases cited therein.