How Do I Show Use in Commerce for Trademarks for Service-Based Business?
Blog By: Attorney Nicole Hetz
Note: If you want to learn more about trademarks in general before diving into this particular topic, scroll to the bottom of this blog for resources on trademark basics.
Showing the USPTO that you have been using your name or logo can be easier for some types of businesses than others. If you are selling a product, it seems pretty straightforward to take photographs of your product for sale, the labels and website store platform, and to demonstrate that it has been sold already.
However, if your business is service-based, you may be scratching your head on what to take a photo of. This blog will help you to understand how to show use in commerce for trademarks for services.
How do I select filing classes for my trademark application?
When you work with an attorney to register your trademark, they will guide you in selecting the appropriate class or classes for your mark based on the nature of your business and the goods or services you provide. It's important to choose the correct class or classes, as this will ensure that your trademark is properly protected and that you have exclusive rights to use it in your industry.
In addition to selecting the appropriate class or classes for your trademark, your attorney will also advise you on the requirement to show use of the mark in commerce. This means that either immediately or within six months from the date of your application, you will need to demonstrate that you are using your trademark in connection with the goods or services you have identified in your application. This requirement helps to ensure that trademarks are only registered for marks that are actually being used in commerce (for example, on your website), and not just reserved for future use. Your attorney will be able to guide you through the process of providing evidence of use and help you prepare the necessary documentation to satisfy this requirement.
How do I gather use in commerce specimens for a trademark application?
When you have a product, you can normally show pictures of the product itself in the market and that suffices. But when you provide a service, things get a little more complicated. When you offer a service, there is no physical product to put a label on. Instead, you must show how your brand is being used to sell your service. This means that you can use your brand name to promote your services or show how it is used in the performance of your service. This is important because it helps to protect your brand and make sure that customers can trust and recognize your services.
According to the government's guidelines, there are several ways you can show that your brand is being used to promote your services. You could use newspaper and magazine ads, brochures, billboards, or direct mail pieces. If you have any publicly available press releases on your website that mention your services and use your brand name, those can also be helpful. You could also use letterhead stationery, invoices, and business cards that clearly show your brand name when you're providing your services. These are all great ways to demonstrate the connection between your brand and the services you offer.
If you provide your services online, you can show how your brand is being used by taking a screenshot of the webpage where your trademark and a reference to your services appear. Ideally, your trademark should be displayed in the webpage header, but any prominent showing of your trademark that appears near a description of your services will work. Just make sure you include the website URL and the date you last accessed the webpage either on the screenshot or in the application.
What doesn’t work:
If you are booked for speaking engagements but the promotions show your personal name instead of your business name or logo as it appears exactly on your trademark application, the flier for this event will not be acceptable evidence.
If you are providing pictures that are not real items yet, such as: a mock-up of business cards or items with the logo on it, these will not be acceptable evidence.
Remember: It will be up to the USPTO examiner designated to your case to decide whether or not the specimens provided are good enough to show use in commerce. The USPTO will let you know via office action if more is needed.
Rational Unicorn has successfully filed hundreds of trademarks on behalf of our clients. If you would like our assistance with your trademark, we would be happy to schedule a free consultation to discuss this more with you.
Resources for Trademark Basics
For an introduction to this topic, these links will give you a better understanding of the basics.
You can start by reviewing the trademark process on our website.
There are also two blogs worth reading to first understand the basics of trademarks:
For our current clients, we have an educational document available with visuals for specimens. Please ask your attorney or the Front Desk for a link to this document.