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PROVIDING EVIDENCE OF USE

 

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Dates of First Use

The date of first use anywhere is the date when the goods were first sold or transported or the services first rendered under the mark, if such use is bona fide and in the ordinary course of trade.  For every applicant, whether foreign or domestic, the date of first use of a mark is the date of the first use anywhere, in the United States or elsewhere, regardless of whether the nature of the use was local or national, intrastate or interstate, or of another type.

The date of first use in commerce is the date when the goods were first sold or transported, or the services were first rendered, under the mark in a type of commerce that may be lawfully regulated by Congress, if such use is bona fide and in the ordinary course of trade.

The term "use in commerce" means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For purposes of this Act, a mark shall be deemed to be in use in commerce:

on goods when it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and the goods are sold or transported in commerce, and

on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services.

SPECIMENS OF USE:

GOODSSpecimens for goods may be the actual goods with the mark on them, original tags or labels with the mark which are attached to the goods, original containers/packaging with the mark used for the goods, displays associated with the goods or photographs, photocopies, proofs or fax copies of any of the foregoing. Note: invoices, announcements, order forms, bills of lading, leaflets, brochures, catalogs, publicity releases, letterhead and business cards are generally not acceptable specimens for goods.

Electronic Displays for Goods: A website page that displays a product, and provides a means of ordering the product, can constitute a “display associated with the goods,” as long as the mark appears on the web page in a manner in which the mark is associated with the goods, and the web page provides a means for ordering the goods. The Trademark Trial and Appeal Board has held that web pages that display goods and their trademarks and provide for online ordering of such goods are, in fact, electronic displays which are associated with the goods. Such uses are not merely advertising, because in addition to showing the goods, they provide a link for ordering the goods. In effect, the website is an electronic retail store, and the web page is a shelf-talker or banner which encourages the consumer to buy the product. A consumer using the link on the web page to purchase the goods is the equivalent of a consumer seeing a shelf-talker and taking the item to the cashier in a store to purchase it. The web page is thus a point of sale display by which an actual sale is made.  However, an Internet web page that merely provides information about the goods, but does not provide a means of ordering them, is viewed as promotional material, which is not acceptable to show trademark use on goods

SERVICES: Specimens for services may be original signs for the services, brochures for the services, advertisements for the services, photographs which show the mark either as it is used in the rendering or advertising of the services, or photographs, photocopies, proofs or fax copies of any of the foregoing. The specimens must either show the mark and include some clear reference to the type of services rendered under the mark in some form of advertising, or show the mark as it is used in the rendering of the service, for example on a store front or the side of a delivery or service truck. Note: In certain circumstances, letterhead and business cards may be acceptable.

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Material Not Appropriate As Evidence of Use

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