What Is Trademark Use?

The use of a trademark, or using a trademark sign, is a legal term that's not really the same as the common-sense use of the word. When I mention somebody's brand, I'm kind of using it. When I say I have an Apple phone or an iPhone, or when I say I'm using a Canon camera or when I say, whatever, I'm mentioning the brand. I'm kind of using it, but I'm not using that brand in the trademark sense of the world.

What Does it Mean From the Trademark Perspective to Use a Brand?

That answer is not intuitive, but it's not really that difficult to understand. If you have a brand that covers physical products, you are said to "use" that trademark if you're selling those products under that brand. If the product itself has a label on it, or if the packaging has a label on it, or in the worst-case scenario, during the process of a sale of a product there is some physical contact with that brand with a customer. For services, it's about rendering those services under that brand or advertising those services under that brand.

What Constitutes Use?

Interestingly, you may have noticed, for services, advertising of the service is sufficient to constitute use. It's not the same with products. Just because you're starting to advertise a product on your website, and you're going to say, "This is going to be the best product in the world, that's its name," until you actually start selling the product that bears that name, you're not using the trademark for that product.

Why Is This So Important Andrei?

This is extremely important for both determining whether you're infringing on somebody else's trademark because if you're not even using their trademark, you're not infringing on their trademark. Also, it's important in terms of your understanding of whether you're filing your trademark based on existing use, intent to use, or what's called "proposed use" in Canada. It's also important for opposition purposes. Again, let's say there's a dispute, about who started using that brand first. Again, coming up with a brand is not enough. Just because you came up with the idea for the brand first, doesn't mean that you've been using that trademark first.

The same idea with a website. For example, you came up with a name, you've registered a domain name, but you didn't build a website, you didn't start offering those services. If you register a domain name today and then somebody else comes up with the same idea tomorrow, and the trademark that name, sucks to be you. They're going to be the one owning the brand because you haven't built anything. Nobody knows about you under that brand, and simply registering a domain name doesn't give you any trademark rights. So be very careful to have a proper understanding of what trademark use means. Again, coming up with the idea is not trademark use. Simply mentioning a brand is not use. Advertising a product is not use. Selling a product with a name on it is use, and offering services and advertising services is use.

Is it Considered Trademark use if Products or Services Are Offered?

In short, yes and no. It is considered trademark use if companies either advertise or actually give services under an already trademarked name. But, this does not apply to products advertised. In other words, a company is not technically committing trademark infringement if they advertise products. This includes grocery stores that sell trademarked soda products. 

Also, trademark use applies to when people come up with ideas for a company. Ideas for a company are only ideas unless a company trademarks the idea of the brand. Then the idea becomes ownership, protected by law to ensure that no one else claims it as theirs. However, if someone has the same idea for a trademarked company, they are not committing trademark infringement. 

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