In the United States, trademark rights are acquired through use in commerce, not through state or federal registration. To obtain rights in a mark, the party asserting ownership must show "first, adoption, and, second, use in a way sufficiently public to identify or distinguish the marked goods" in the minds of relevant consumers. Blue Bell, Inc. v. Farah Mfg. Co., Inc., 508 F.2d 1260, 1266. Sales of goods bearing the mark are considered the most substantial evidence of the mark's use in commerce. The importance of sales in the ownership analysis has led courts to conclude that advertising a mark without more is insufficient to show trademark ownership.

Even if a trademark owner does not seek federal registration, a party establishing common law rights in a trademark can bring a trademark infringement suit in federal court. See 15 U.S.C. § 1125(a). 

CASES

1. United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918) ("[T]he right to a particular mark grows out of its use, not its mere adoption[.]"); 
2. B & B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 142 (2015) (citing 2 J. McCarthy, Trademarks and Unfair Competition § 16:1 (4th ed. 2014)) ("One who first uses a distinct mark in commerce thus acquires rights to that mark."). 
3. Lucent Info. Mgmt., Inc. v. Lucent Techs., 186 F.3d 311, 316 (3d Cir. 1999) (citing Natural Footwear Ltd. v. Hart, Schaffner & Marx, 760 F.2d 1383, 1398–99 (3d. Cir 1985)) (explaining that the test for common law ownership in the Third Circuit examines sales in three of four factors).
4.  Specht v. Google, Inc., 660 F. Supp. 2d 858, 863–864 (N.D. Ill. 2009) ("‘Mere advertising,’" in the absence of an actual good or service in commerce, is insufficient to establish use.") 

Federal law incorporates the use in commerce standard by requiring such use as a condition for obtaining registration. A mark must have sufficient use in commerce when filing for registration, or the filing must be accompanied by a good faith statement of an intention to use the mark in commerce. 15 U.S.C. 1051(a)–(b). For these "intent-to-use" applications, the registrant must provide evidence of the mark's use in commerce no later than six months after the initial filing or request an extension for additional time to file such a statement. Id. § 1051(d)(1)–(2).

"Use in commerce" is a term of art under the Lanham Act, defined as "the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark." 15 U.S.C. § 1127. "Commerce" is also defined as "all commerce which may lawfully be regulated by Congress." Id. A mark's use is bona fide if the mark is used for the owner's commercial benefit. The use of a mark to destroy another mark's value or to bring detriment to a competitor is not a bona fide use. Taken together, the definitions suggest that for a mark to obtain federal registration, the mark must be used for the owner's benefit in interstate commerce, foreign commerce, or intrastate commerce that has a substantial effect on interstate commerce. 

CASES

1. Lodestar Anstalt v. Bacardi & Co. Ltd., 31 F.4th 1228, 1254 (9th Cir. 2022) cert. denied, 143 S. Ct. 428 (2022) (noting that good faith reflects genuine commercial endeavors). 
2. Del-Rain Corp. v. Pelonis USA, Ltd., 29 F. App’x 35, 38 (2d Cir. 2002) (noting that a mark is used in bad faith when a mark is used to destroy another mark or undermine a competitor). 
3. E.g., Gonzalez v. Raich, 545 U.S. 1 (2005) (discussing modern Commerce Clause jurisprudence). 
4. Allard Enters. Inc. v. Advanced Programming Res. Inc., 146 F.3d 350, 357 (6th Cir. 1998) (noting that the Lanham Act's "use in commerce" requirement is "entirely consistent with the traditional rules governing common-law ownership of trademarks."). 

NOTE: For an example of an "intent-to-use" application, consider the trademark application for "Reputation (Taylor's Version)."  REPUTATION TAYLOR'S VERSION, U.S. Trademark Application Serial No. 90/524,340 (filed Feb. 11, 2021). Click on the drop-down entitled "Procedural History" to review the multiple extensions that Ms. Swift's team has been granted regarding her "Statement of