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Is a Webpage “Use in Commerce” for Trademark Purposes?

In order to register your trademark with the United States Patent and Trademark Office, you need to show that the trademark has been used in interstate commerce*. (Interstate commerce means between states.) So what counts as “use in commerce” is a big question in trademark law.

Of course, many businesses are primarily or entirely online these days. So often the best way to show the USPTO that you’re using your mark in commerce is simply to take a screenshot of your website. But does that always work? A recent case reminds us to be careful about the webpage or your submission may be rejected.

The U.S. Court of Appeals for the Federal Circuit (CAFC) recently ruled, in the case of In re: Siny Corp., that many website screenshots don’t qualify as specimens of use for the purpose of trademark registration. You can click here to see the actual webpage that was submitted as part of the trademark application in question.

According the the CAFC, the webpage lacked information that would be essential to a purchasing decision, such as:

  • a price or range of prices for the goods
  • minimum quantities
  • payment options
  • shipping information

Note that the webpage did have language at the bottom of the webpage stating “For sales information:” followed by a phone number and email address. The CAFC found this to be insufficient evidence of use in commerce, adding: “the specimen did not cross the line from mere advertising to an acceptable display associated with the goods.”

The bottom line is that if you are selling goods through your website, and you want to use a webpage as evidence of use in commerce, make sure that the page contains all of the relevant information. Failing to include that information may cause your trademark application to be rejected.

Need to navigate the trademark application process? Let’s talk.

* There are some exceptions, such as trademark filings that are based on a foreign registration, but they don’t apply in most cases.

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