1301.03(b) Rendering of Service in Commerce Regulable by Congress
In an application under §1(a) or §1(b) of the Trademark Act, 15 U.S.C. §1051(a) or §1051(b), the applicant must use the mark in the rendering of the services in commerce before a registration may be granted. Couture v. Playdom, Inc., 778 F.3d 1379, 113 USPQ2d 2042 (Fed. Cir. 2015). Section 45 of the Act, 15 U.S.C. §1127, defines “commerce” as “all commerce which may lawfully be regulated by Congress.” See TMEP §§901.01, 901.03.
The following are three examples of how a service may be rendered in commerce: (1) the applicant’s services are rendered across state lines; (2) customers come across state lines in response to advertising for the services; and (3) the applicant’s licensees or franchisees who use the mark are located in more than one state. See TMEP §901.03 and cases cited therein.