As discussed in this post, the United States Patent and Trademark Office will not register your trademark until you begin using it in commerce. For a trademark used in connection with services (a service mark), “use in commerce” require both that you have displayed your trademark in the advertisement of your services and that you render your services in commerce or in multiple states or the U.S. and a foreign country. TMEP § 901.01
So, rendering (offering) your services in multiple states satisfies this requirement. Yet also it seems that the requirement can be met without offering your services in multiple states or in multiple countries, by “rendering your services in commerce.”
Rendering Trademarked Services in Commerce
So what the heck does rendering the services in commerce mean? Well, only trademarks used in interstate commerce are entitled to federal trademark registration, because the federal government only has the power to regulate interstate commerce (it’s in the Constitution!). “In commerce” here is differentiated from commerce in multiple states or in the U.S. and a foreign country, so it mean intrastate service that nevertheless qualifies as “interstate” commerce.
Intrastate Hotel, Dining, and Automotive Services Are Interstate Commerce
The TMEP explains: “if intrastate use directly affects a type of commerce that Congress may regulate, this constitutes use in commerce within the meaning of the Act.” TMEP § 901.03. Thus, automotive, restaurant, and hotel services are generally considered to be used in commerce because they are available to customers traveling interstate on federal highways, and thus are subject to federal regulation.
Intrastate Services That Target or Serve Out-of-State Customers Qualify As Interstate Commerce
Other services offered in only a single state may also be considered to be rendered in commerce if a sufficient inter-state nexus can be shown. Evidence that the services are advertised in multiple states or are used by residents of different states is effective in demonstrating that the services have been rendered in commerce.
Internet Services Are Interstate Commerce
Services offered over the Internet are considered interstate commerce, “since the services are available to a national and international audience who must use interstate telephone lines to access a website.” TMEP § 901.03
Summary
In order to register your trademark with the United States Patent and Trademark Office, you must use your trademark in connection with services offered in interstate commerce. That means the services must either be offered in multiple states, or in the U.S. and a foreign country, or that the services are offered in a single state, but to out-of-state customers.
And if your services do not fall under any of those possibilities, but you can think of another way to tie your services to interstate commerce, the Trademark Office could allow your trademark to be registered as well.
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