Trademark law term. Trademarks cannot be applied for to simply ‘squat’ on the mark; while most jurisdictions will allow someone to apply for a mark that they ‘intend to use,’ actual bone fide commercial use of the mark must be established within a reasonable period of time, typically a few years (e.g., 3 in the USA) or the mark will be deemed abandoned and cancelled. Also, in general, the party that first uses a trademark in a given jurisdiction is considered to have a higher entitlement to the mark than a subsequent user, and in a dispute in trademark office will commonly be awarded the mark if they can show that prior use, i.e., that they are the senior party.
Evidence of bone fide prior use can consist of:
- Showing the mark on the was used on physical products or its packaging;
- Showing the mark on a product display that includes the product and a price;
- Showing use of the mark on materials used to market, sell or advertise services;
- Showing use of the mark on materials used to deliver the service.
However, in contrast to services, not all jurisdictions recognise use of the mark to advertise physical products as sufficient to show use. In addition, a trademark office or court can discount a use a de minimis where for example only a single or very small number of articles have been sold over a protected period under the mark. In addition a use may be rejected as bone fide where:
- sales volumes are considerably lower than normal than typical for that class of product;
- all sales were to family or friends of the vendor – trademark claimant;
- there do not seem to have been genuine efforts to sell the product to the purchasing public (i.e., unaffiliated purchasers);
- there is limited or no promotional activity;
- the claimed first use is followed by a prolonged interregnum without actual use;
- the purported first user simply relabelled third party products with the mark;
- the purported user was simply trying to block a competitor from using the mark by ‘occupying the field;’
- the use was not genuinely commercial in character – so things like handmade labels, etc.