What Counts as
Qualifying Trademark Use?
To qualify for registration, your trademark use must meet the following criteria:
Public Use: The trademark must be visible to the public (i.e. not just used on a private business registration).
Direct Association with Products or Services: The trademark must appear as branding directly identifying your products or services available for sale, like on website header where the offerings are sold, or on a product tag.
Availability for Sale: Your products or services must actually be available for sale (i.e. not just a “coming soon” page).
How we usually prove use…
Most commonly we prove trademark use in one of the following ways:
Websites: We show an example of your trademark displayed in a prominent place on your website near a link where customers can purchase your offerings (i.e. on a check-out page), or near a clear call-to-action describing how customers can move forward with your services.
Product Tags: If you are selling tagged physical products, we can show a photo of those products with the trademark clearly appearing on the tag.
What doesn’t count…
Certain references to your trademark do not meet the "use in commerce" requirement, for example:
Domains / Social Media Handles / LLCs - Registering domains, social media handles, an LLC, or other similar registrations with the name do not count on their own.
Casual References - Simply mentioning your trademark on social media, or in a blog, podcast, or other context on it’s own does not count. To qualify, the trademark reference must specifically identify a particular product or service available for sale. For example, if you sometimes talk about “The Wild Abundance Method” to describe a concept, that is probably not trademark use. If you create a course called “The Wild Abundance Method” and market it for sale under that name, that is trademark use.
Decorative Use - For apparel brands, putting the name on a t-shirt or hat is considered decorative and doesn’t count as trademark use unless the trademark is on the tag of the product.
Varied Use - Variations of the trademark don’t count as use for the variant you are trying to trademark. Like, if you had qualifying use for “Abundance Method”, that does not count as trademark use for “The Wild Abundance Method”
Fake Use - You can’t just photoshop fake use of your trademark. Even if its initially accepted by the USPTO, it can render your trademark vulnerable to cancellation and subject you to other penalties for the misrepresentation.
So, what date should we list as your first date of use?
Provable Use: It’s best to list a date that you are positive you could prove you had qualifying use of the trademark meeting the above criteria in case anyone ever challenges it. For example, if you have a digital receipt from one of your first sales of your offerings, that’s often a good date to list — just make sure the receipt clearly shows your full trademark and the offerings sold.
Any Qualifying Date: The date we list doesn’t need to be the absolute first qualifying date, because when we file, we say that you were using the trademark “at least as early as…” the date we list, and if you ever needed to prove you had earlier use, you could still do that.
Pick a Safe Date: If you aren’t sure, it’s better to err on a later date when you are positive you had qualifying use, because if you guess a date that’s earlier than you had qualifying use, that can make your trademark vulnerable to cancellation for the misrepresentation.