To qualify as a “use in commerce” for trademark purposes, a trademark must be used in a bona fide, ordinary commercial transaction. A token sale , that is, a sale that is made solely for the purpose of creating or preserving trademark rights, does not qualify as “use in commerce.” Sham transactions, such as pretended sales to family and friends, also do not qualify. Wholly internal company use, such as in prototype models for testing, or internal company documents, does not qualify. Pre-launch marketing does not qualify, either. This includes uses in sales brochures, advertising materials, and domain names prior to any actual, completed sales or service delivery. Use in connection with goods shipped by a manufacturer to the trademark owner normally does not qualify, either.
To qualify as trademark use in commerce, the sale should be to a consumer or customer. The consumer does not have to be a retail store shopper, though. A B2B sale of a business product or service can qualify as use in commerce, too.
Advertising alone is not sufficient to establish use in commerce unless the product or service is actually available for purchase and delivery. Similarly, a website that displays or describes goods or services but has no way of actually ordering them will not suffice. Advertising that includes a display of a service mark may suffice as a specimen of use of a service mark for purposes of registration, but an actual sale or at least the present availability of the service to the public is necessary to establish use in commerce.