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What serves as evidence of commercial activity in the US prior to trademark application?

Written by Jan Buza

Co-founder of Trama

Evidence of prior US commercial use is relevant in two situations: establishing use-in-commerce as the filing basis, and supporting a claim of common law rights in a dispute.

Acceptable evidence includes invoices or sales records showing goods sold or services rendered to US customers before the filing date, shipping records for goods delivered to US addresses, screenshots of a US-facing website with date stamps predating the application, advertising materials targeting the US market with dated publication records, and any other documentation that demonstrates the mark was in active commercial use in connection with specific goods or services in the US before the application was filed.

The evidence must show the mark as it actually appeared in commerce, in direct association with the goods or services, and must be capable of verification.

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