Trademark rights in the United States arise based on use in commerce. This use requires that the goods or services offered by the applicant fall under the jurisdiction of the United States Congress and their power to regulate. The federal government’s power to regulate trademarks is born from the commerce clause of the United States Constitution, with the Trademark Act permitting their registration.
Applicants are not required to disclose what type of commerce allows for its registration. Instead, the United States Patent and Trademark Office (USPTO) assumes that the mark is being used in one of the types of commerce that the United States Congress has the power to regulate.
Typically, the use in commerce requirement is fulfilled by interstate commerce. Interstate commerce requires that the use of the mark—when taken as a whole—would have a substantial effect on interstate commerce.
For example, if company A sells computers in Florida and customer B in Michigan buys a computer from company A’s and subsequently shipped to customer B in Michigan, then you have established the use in commerce requirement.
If you are seeking to apply for a federal trademark registration, you should speak with an experienced trademark attorney to determine if your use of your trademark fulfills the “use in commerce” requirement.