Q: Hello, I have a trademark NOA for a dating service that is free. Can I file statement of use without making sales?
Hello,
I have a trademark NOA for a dating service that is free. It is a mobile phone application and a website that serves about 3500+ users - is fair game to file the statement of use for the trademark? Or do I need to start making sales on the app?
A: You do not need necessarily have sales. Your product or service needs to be available to the public for use or purchase. In your case you should be able to file a SOU. Consult with an attorney, this is not legal advise.
Matthew Alexander Toporek agrees with this answer
A: Sales are not necessarily required, but you will have to show the mark being used in commerce in the statement of use. I would consult with an attorney in an effort to make it a smooth process.
A:
This is not legal advice, but in general, a trademark owner does not need to show sales in order to satisfy the Statement of Use requirements in response to a Notice of Allowance from the USPTO. There are many charities and other nonprofits that own U.S. federal trademark registrations without ever selling anything.
To register a trademark, the USPTO needs to see evidence that a trademark is used in "interstate commerce," which broadly means commercial transactions across state lines or involving consumers from more that one state. If a company is selling its products/services across state lines, that will probably qualify as "interstate commerce," but making sales is not the only way to use a mark in interstate commerce. There are many caveats, but, very generally, if an entity is using its trademark to actually provide (even if for free) its products/services to consumers from different states, that may be construed by the USPTO as use of the mark in interstate commerce, as long as the trademark owner can provide proper evidence to the USPTO and otherwise complies with all the technicalities of the Statement of Use requirements. There are many trademarks registered with the USPTO for use in connection with mobile applications offered to consumers across the United States and elsewhere for free.
This information was provided for general informational purposes only. It does not, and is not intended to, constitute legal advice. I am not your lawyer. If you need an experienced trademark lawyer, please contact my office directly: https://www.sivochek.com
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