Definitions

The power of the federal government to register marks

comes from the commerce clause of the Constitution.  Section 1 of the Trademark Act,

15 U.S.C. §1051

, permits application for

registration of “a trademark used in commerce” (

15 U.S.C.

§1051(a)

) or of a trademark that a person has a bona fide

intention to use in commerce (

15 U.S.C.

§1051(b))

.

Section 45 of the Trademark Act,

15 U.S.C.

§1127

, defines “commerce” as “all commerce which may lawfully

be regulated by Congress.”  Section 45 defines “use in commerce” as follows:

The term “use in commerce” means the bona fide use of

a mark in the ordinary course of trade, and not made merely to reserve a right

in a mark.  For purposes of this Act, a mark shall be deemed to be in use in

commerce--

(1) on goods when—

(A) it is placed in any manner on the goods or their

containers or the displays associated therewith or on the tags or labels

affixed thereto, or if the nature of the goods makes such placement

impracticable, then on documents associated with the goods or their sale,

and

(B) the goods are sold or transported in commerce,

and

(2) on services when it is used or displayed in the

sale or advertising of services and the services are rendered in commerce,

or the services are rendered in more than one State or in the United States

and a foreign country and the person rendering the services is engaged in

commerce in connection with the services.