“Use in Commerce” in India: The Heartbeat of Your Brand’s Protection

Imagine you’ve meticulously crafted a unique brand name and a stunning logo. You’re ready to embark on your trademark registration journey in India, securing your intellectual property rights. But then you encounter a phrase that might make you pause: “Use in Commerce.” What does it truly mean in the Indian context, and why is it so vital?

Let’s humanize this legal requirement, because “use in commerce” isn’t just a bureaucratic hurdle; it’s the very heartbeat of your brand’s existence and its ultimate protection under the Trademarks Act, 1999.

The Core Idea: Trademarks Live Through Use

At its heart, a trademark exists to distinguish the goods or services of one business from those of another.¹ It’s a source identifier. And how does it identify a source? By being actively used in the marketplace – by being seen, heard, and associated with your offerings by consumers.

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The Human Angle: Think of your brand as a person. Just as a person needs to actively participate in society to be recognized and have a purpose, your trademark needs to be “out there” in the commercial world to fulfill its function. A name or logo sitting idly on a piece of paper, never making it to your products, packaging, or marketing, doesn’t really serve its purpose. The law recognizes this.

India’s Approach: “Proposed to be Used” vs. “Actual Use”

Unlike some jurisdictions (like the US, where “intent to use” filings are common but “actual use” is often required before registration), India offers flexibility when it comes to “use in commerce” at the time of filing your trademark application.

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You have two primary options when you file your trademark application (Form TM-A) in India:

1. “Proposed to be Used” (Intent to Use): This is ideal for startups or businesses still in their nascent stages. You declare your bona fide intention to use the mark in the future. You don’t need to prove immediate use at the time of filing. This allows you to secure an early priority date for your mark, which can be crucial in a “first-to-file” system, even if your business isn’t fully operational yet.The Human Angle: This is like reserving a plot of land for your dream home before you’ve even laid the foundation. You’ve staked your claim, giving you peace of mind that no one else can build an identical structure there while you get your plans in order.
2. “Actual Use” (Prior Use): If you’ve already been using your brand name or logo in the market for a period before filing, you can declare this “prior use.” In such cases, it is highly advisable to submit an Affidavit of Use (also known as a Statement of Use) along with supporting proof of use.
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   The Human Angle: This is like showing the world that you’ve already built a beautiful house on your plot, and you have all the receipts and photos to prove it. This strengthens your claim significantly, especially in potential disputes, as India is primarily a “first-to-use” jurisdiction, meaning prior use can sometimes trump prior registration in certain scenarios.²

What Constitutes “Use in Commerce” (and Why it Matters for Proof)?

When proving “actual use,” the Indian Trademark Registry looks for evidence that your mark is genuinely being used in connection with the goods or services specified in your application.³ This isn’t just about printing your logo on a business card. It involves:

• Actual sale or supply of goods/services: Invoices, receipts, sales records, delivery notes.
• Advertising and promotional materials: Brochures, flyers, advertisements in print or digital media, social media posts, website screenshots showing the mark prominently.⁴
• Product packaging and labels: Photos of your products with the mark on them.
• Business correspondence: Emails, letters, contracts showing the mark in use.
• Presence at trade fairs/exhibitions: Photos or documentation from events where your brand was displayed.

The Human Angle: Imagine trying to convince someone you’re a renowned chef. You wouldn’t just tell them; you’d show them your restaurant, pictures of your dishes, reviews from customers, and perhaps even a sample of your culinary creations. Similarly, the Registry wants to see tangible evidence that your brand is actively serving its purpose in the market.

The “Use it or Lose it” Principle: Maintaining Your Registration

Even after your trademark is registered in India, the requirement of “use in commerce” doesn’t disappear.⁵ The Trademarks Act, 1999, incorporates a “use it or lose it” principle.

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If a registered trademark is not used for a continuous period of five years and three months from the date of its registration, it becomes vulnerable to cancellation on grounds of non-use. Anyone can file a trademark cancellation petition if they believe your mark has been abandoned due to non-use.⁶

The Human Angle: This is like the government reclaiming unused land. If you’ve been granted exclusive rights to a piece of intellectual property, but you’re not actively leveraging it, the law reasons that it should be made available for others who will use it to contribute to commerce. This provision prevents “trademark squatting” – the practice of registering marks purely to block others, without any genuine intent to use them.

Why Prioritize “Use in Commerce”?

1. Strengthens Your Rights: Demonstrating early and continuous “use in commerce” strengthens your common law rights, providing a stronger defense against potential infringers, even before formal trademark registration.⁷
2. Deters Infringement: A mark that is visibly in use, especially with the ™ symbol, signals to competitors that you are serious about your brand protection.
3. Prevents Cancellation: Active and documented use is key to maintaining your trademark registration for its entire 10-year term and subsequent renewals.⁸
4. Enhances Brand Value: A trademark actively used in commerce builds brand recognition, goodwill, and ultimately, monetary value as an intangible asset.

The Takeaway: Make Your Brand Work!

While India offers the flexibility to file a “proposed to be used” application, remember that actual use is the ultimate goal for a robust and defensible trademark. From the moment you conceive your brand, think about how it will come alive in the market. Document every instance of its use. This proactive approach, coupled with expert guidance from a trademark attorney in India, will ensure your brand identity isn’t just legally protected on paper, but thrives in the bustling commercial landscape of India. Your brand’s heartbeat depends on it!

Avinash Bhatt
Email: Bhattavi93@gmail.com