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FishFAQ Trademark Video 4: Trademarks and Use
- Robert Fish, Esq.
- Mar 27
- 3 min read
by Bob Fish, esq. | March 26, 2026 | 8:00 am
Trademarks are often misunderstood as rights that arise from registration. In reality, trademark rights in the United States are fundamentally grounded in use. This principle is the focus of our fourth installment in the FishFAQ Trademark Video series.
The Foundation of Trademark Rights: Use in Commerce
Under U.S. trademark law, ownership begins not with filing an application, but with actual use of a mark in commerce. A trademark functions as a source identifier—it distinguishes your goods or services from those of others. Without use, there is no trademark.
This means that simply creating a name, logo, or slogan is not enough. To establish rights, the mark must be used in a way that consumers associate it with the source of specific goods or services.
Federal Registration and the Requirement of Use
While common law rights arise through use, federal registration with the United States Patent and Trademark Office (USPTO) provides significant advantages, including nationwide priority, legal presumptions of ownership, and enhanced enforcement mechanisms.
However, federal registration also requires proof of use.
Applicants must either:
Submit evidence of actual use in commerce at the time of filing, or
File on an “intent-to-use” basis, indicating a bona fide intention to use the mark in the future
For intent-to-use applications, registration will not be granted until the applicant submits a Statement of Use, along with acceptable specimens demonstrating how the mark is used in commerce. This must typically be filed within six months of the Notice of Allowance, although extensions may be available.
Specimens: Demonstrating Real-World Use
A critical component of the registration process is the submission of specimens—real-world examples showing how the trademark is actually used. These may include:
Product packaging or labels
Website screenshots showing the mark in connection with goods or services
Marketing or advertising materials
The key requirement is that the specimen clearly links the mark to the goods or services being offered.
Strategic Considerations
Understanding the role of use is essential for developing a sound trademark strategy. Premature filings, improper specimens, or failure to meet use requirements can delay or jeopardize registration.
Equally important is maintaining continuous use. Trademark rights can be weakened—or even lost—if a mark is not actively used in commerce.
Continuing the FishFAQ Series
This is the fourth installment in our series of FishFAQ videos directed towards Trademarks. This video covers the importance of usage to trademarking.
You become a trademark owner by using it to identify the source of your goods or services. However, eligibility for registering your trademark for federal protection will require usage. You will have to submit samples of actual usage, or apply on an intention to use basis, which will require a statement of use within 6 months.
Resources
This series is an extension of our initial Patent FishFAQ series.
If videos aren’t your thing, we also have extensive text Patent and Trademark FAQ sections. and though no videos have been made for Copyright questions, there is a text Copyright FAQ page too
About the author: Bob Fish
Bob Fish, Esq. is an intellectual property attorney working in Irvine, CA. He has a keen eye for the many absurdities that abound in the practice of law and has been bringing those to life for several years in a comic strip published in one of the leading industry journals, IP Today. Bob is also a Super Lawyer
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📰 FISH NEWS: Fish News highlights the latest insights, updates, and thought leadership from Fish IP Law. Led by Robert (Bob) Fish, the firm continues to innovate in patent strategy, trademarks, and creative IP solutions across diverse industries.
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