From “Coming Soon” to “Show Me the Goods”: Real Trademark Evidence of Use Explained

📌 Quick Summary

1-Sentence Answer

To register or maintain a trademark, you must provide real evidence that your trademark is actually being used for the products or services claimed—no “coming soon” promises allowed!

The Article Overview

This article demystifies what counts as genuine “evidence of use” for trademarks, explains the difference between “intent to use” and “use in commerce,” outlines acceptable (and laughably unacceptable) evidence, answers burning FAQs, and gives business owners the real scoop—complete with practical examples, hazards to avoid, and a dash of legal humor.

❓ Common Questions & Answers

Q1: What exactly is ‘evidence of use’ for a trademark?
Evidence of use is tangible proof—like photos, labels, packaging, or website screenshots—showing your trademark is actively used on your products or services in real-world commerce, not just in your imagination (or your pitch deck).

Q2: Is my Kickstarter campaign page acceptable evidence?
Nope! Crowdfunding and presales show intent, not actual current use. Trademark offices want to see your goods or services available now, not promised for “someday.”

Q3: How soon must I show evidence of use after filing my application?
If you apply under “use in commerce,” evidence is due with the application. If you apply with “intent to use,” you get up to 36 months (with extensions) to provide proof after approval.

Q4: What’s the easiest way to collect acceptable evidence?
Snap clear photos of your product (with visible trademarks), packaging, sales displays, invoices, or screenshots of a website where real customers can buy your stuff. Bonus points for clarity, not creativity!

Q5: What happens if my evidence is rejected?
You’ll likely get an “Office Action” (the legal version of a red-inked essay), with a chance to fix and resubmit. But beware—persistent mistakes can doom your application or cost you your registration.

📜 Step-by-Step Guide

Figure Out Your Filing Basis:
Decide if you’re already using the mark in commerce (file as “use in commerce”) or if you’re planning to use it soon (“intent to use”).
Gather Acceptable Evidence:
Collect real-world photos, screenshots, packaging, labels, or service ads showing the trademark on your product/service, available for purchase now.
Double-Check What Doesn’t Count:
Ditch anything that’s “coming soon,” “out of stock,” only internal, just for beta testers, or mere advertising without real product/service access.
Submit Evidence With Your Application (or Later):
File your evidence immediately for “use in commerce” or after approval for “intent to use” (you’ll have up to 36 months with extensions).
Maintain With Regular Filings:
Keep your registration alive by submitting updated evidence of use at 5-6 years, 9-10 years, and every decade after.

📖 Historical Context

Trademarks have been protecting brands and products since the Middle Ages, when blacksmiths, bakers, and barrel makers marked their wares to stand out at crowded markets (and to help angry customers track them down after a “bad batch”). In the U.S., trademark laws date back to the late 1800s, but “evidence of use” became a formal requirement with the Lanham Act in 1946. The intent: to weed out “trademark squatters” who claimed marks they never intended to use, and to ensure the trademark register stayed a playground for real business, not make-believe.

What is “Use in Commerce”?

“Use in commerce” means your trademark is actually being used right now in the ordinary course of trade—your goods are being sold, or your services are being offered to real customers, across state lines or internationally. The mark isn’t just on your prototype or in your dreams; it’s on actual products or services available to the buying public.

Pros of Use in Commerce:

No Extra Steps or Fees: Skip the Statement of Use (SOU) and extension requests required by intent to use filings—less paperwork, fewer bills.
Stronger Out of the Gate: You have real proof of use, which can help if anyone challenges your application or tries to oppose your registration.
Presumption of Validity: Upon registration, your mark is presumed valid and you’re presumed to have exclusive rights for your listed goods/services.

Cons:

Must Be Ready Now: You can only file this way if you’re already up and running—no filing just to “reserve” your name.

What is “Intent to Use”?

“Intent to use” is for those who aren’t quite there yet. You’re planning to use the mark soon, but haven’t started offering the goods or services in commerce. Filing as intent to use secures your place in line (your priority date) while you get your ducks, products, or services in a row.

Pros of Intent to Use:

Secures Your Spot: Locks in a priority filing date, so you don’t lose out to a copycat while you get ready.
Time to Launch: Gives you up to 36 months (with extensions) after initial approval to actually start using the mark and submit evidence.
Market Flexibility: Lets you evaluate your product/service, tweak your brand, and prep for a bigger, better launch without rushing.

Cons:

More Steps & Fees: You’ll need to file a Statement of Use, and possibly request extensions (for a fee) if you need more time.
No Registration Until You’re Live: The trademark won’t actually register until you provide real evidence of use.

Over time, courts and the USPTO (United States Patent and Trademark Office) have refined what counts as legitimate “use in commerce.” A mark scribbled on a napkin doesn’t cut it—neither does selling to your mom or your imaginary friend. The rule of thumb: if an ordinary consumer can find your product or service, and actually buy it with your trademark on it, you’re in business (literally).

In recent decades, as commerce moved online, evidence has evolved too. Now, a screenshot of your e-commerce site showing the product with your mark, ready for purchase (and not out of stock or “coming soon”), is often golden. But beware: the more creative the workaround, the less likely it is to impress the trademark examiner.

🏢 Business Competition Examples

Apple vs. Pre-Paid Patent Trolls:
Apple fends off dozens of “squatters” yearly who try to register marks for tech products that don’t actually exist. Apple always wins by showing their goods are in stores, not just in speculative legal filings.
Impossible Foods’ Launch:
Before rolling out its plant-based burgers, Impossible Foods filed an “intent to use” trademark. When they finally started serving real burgers at restaurants, they quickly provided solid evidence—photos of menus, packaging, and sales receipts—to clinch registration.
Dollar Shave Club:
This startup used packaging, web screenshots, and ads showing real products for sale to beat back challenges from established competitors who claimed their trademark wasn’t “in use.” The evidence spoke for itself (and so did their subscription sales).
Kickstarter Dreams That Flopped:
Many would-be entrepreneurs tried to claim trademarks for crowdfunded gadgets—but since only “coming soon” pages and presales existed, their applications failed, showing the importance of genuine, current commerce.

💬 Discussion Section: What, How, and What Not to Do

Let’s get practical! Knowing what counts as evidence of use is only half the battle. The other half is knowing how to capture it so it actually gets accepted—because a blurry photo or a sketchy PDF isn’t going to impress any trademark examiner.

✅ Acceptable Evidence of Use & How to Capture It

For Products/Goods:

Product Photos: Take clear, well-lit pictures of your actual product, showing the trademark right on the item.
Labels or Tags: Snap photos of labels or tags attached to the product with the mark visible. Make sure the photo shows the label is actually connected to the product—not just printed on a sheet.
Packaging Photos: Photograph the product’s packaging, box, or container with the mark on it. Show enough of the packaging to connect it to the actual goods.
Sales Displays: Capture wide shots of in-store displays or placards, with the goods and mark visible together.
Website Screenshots: Use full-page screenshots (not just cropped images) showing the mark next to an “Add to Cart” button, price, and other product info. Capture the URL and date in your screenshot for extra credibility.
Software Evidence: Take screenshots of the software launch/title screen with the mark, or a purchase/download web page that shows the mark, product name, and “download” or “buy” option.

For Services:

Website Screenshots: Capture a complete screenshot of your service webpage, showing the mark near a clear call-to-action (e.g., “Book Now,” “Subscribe,” or “Order”).
Ads & Commercials: Save digital files or take screenshots/photos of TV, radio, or streaming ads, making sure the mark is used in connection with the service.
Brochures & Flyers: Scan or photograph printed materials, showing both the mark and a clear description of the services offered.
Signage Photos: Take clear, front-facing pictures of business signs with the mark at the physical service location.
Service Documents: Scan or photograph menus (for restaurants), event programs, or anything handed to customers during the service.
Invoices: Scan real invoices issued to customers, with the mark and service info visible.
Business Cards & Letterhead: Scan cards or letterhead showing the mark and service offering—ideally as handed out to clients, not just templates.

Pro Tips:

Always use high-resolution images or legible scans.
Include context (show the full product, full webpage, or full document—not just a cropped logo).
If possible, keep metadata like URLs, dates, or addresses visible.

❌ Unacceptable Evidence (Don’t Even Try…)

Crowdfunding Campaigns: Kickstarter/Indiegogo pages show future plans, not current commerce. Examiners say, “Nice try.”
Presale Documentation: If your product is being sold before it exists, it doesn’t count as current use.
“Coming Soon” Notices: Any webpage, sign, or ad touting that goods or services will be available later (but aren’t now).
“Out of Stock” Notices: If it’s not for sale right now, it’s not in use—plain and simple.
Beta Testers: Providing products or services only to testers or internal users (not real, paying customers).
Advertising Alone: Just a print ad or a digital flyer—without a direct way to buy or use the product/service—doesn’t cut it.
Internal Use: Anything used only within your company, such as internal reports, intranet software, or team shirts.
Preparatory Activities: Market research, product development, business plans, or anything that doesn’t reach a real customer.
Mock-Ups or Digital Renderings: Photoshop magic doesn’t count. Trademark offices want photos of real goods/services, not your design skills.
Standalone Logos: Just a graphic file of your logo, with no connection to a real-world product, packaging, or service.
Overly Cropped Screenshots: A close-up of your mark with no context (no product, no “buy” button, no pricing) will likely be rejected.
Obvious Staging: A label or tag held up by hand, not attached to a product, or obviously staged, is a red flag for examiners.
Printed Ads with No Purchase Info: Print ads or flyers that simply advertise a product or service, but don’t show where/how to get it, aren’t sufficient.
Beta Tester Feedback: Screenshots or emails from private betas, limited releases, or friends-and-family sales.
Blurry, Dark, or Illegible Images: If the examiner can’t see what’s going on, it’s a fast pass to rejection.

Bottom line:
Show your trademark in action, being used for real, available products or services—clearly, publicly, and in a way that any examiner (or skeptical grandma) could recognize at a glance. Go for authentic, well-documented, and context-rich evidence. Leave the Photoshop, blurry snapshots, and “coming soon” signs in the dustbin where they belong!

⚖️ The Debate

Team “Strict Proof Only”
Trademark evidence requirements should be strict, to prevent fraud, “squatting,” and confusion for real businesses. If you’re not in the market yet, you shouldn’t block someone who is. The public and the market deserve an accurate, up-to-date trademark register.

Team “Flexibility for Startups”
Entrepreneurs and startups need flexibility! Not every business can launch overnight. The “intent to use” system gives them a fair shot to secure branding while they build. Overly rigid rules can stifle innovation and punish those still prepping for launch.

✅ Key Takeaways

“Evidence of use” is real, public-facing proof—not “coming soon” hype.
Acceptable specimens include product photos, packaging, web pages, invoices, or ads.
“Intent to use” applications give you extra time, but you must still show real use before registration.
The USPTO loves clarity and authenticity; don’t try to fake it!
Maintaining your trademark requires regular evidence submissions, not just a one-time filing.

⚠️ Potential Business Hazards

Application Rejection: Submitting weak or unacceptable evidence (like pre-sales, internal docs, or advertising alone) can result in costly rejection.
Missed Deadlines: Failing to provide timely evidence—especially for renewals—can cause you to lose your trademark rights.
Trademark Squatters: If you don’t use (or can’t prove use), others may swoop in and claim your mark.
Fraud Allegations: Submitting fake, doctored, or misleading evidence can trigger legal trouble and penalties.

❌ Myths & Misconceptions

“A website with ‘coming soon’ is enough.”
False! The goods/services must be available now—not just promised.
“Any sale counts, even to friends or family.”
Nope—must be bona fide, arms-length sales to actual customers.
“Advertising is all I need.”
Not unless your ads directly link to a way to purchase your products/services.
“Beta testing is real commerce.”
Not for trademark purposes. Testers aren’t real customers!
“I only need evidence once.”
No, you must regularly submit new evidence to keep your registration alive.

📚 Book & Podcast Recommendations

Book:
Building a StoryBrand by Donald Miller – Great for understanding branding and customer engagement.
Book:
Trademark: Legal Care for Your Business & Product Name (Nolo) – A practical, plain-English guide.
Podcast:
IP Fridays – A podcast about patents, trademarks, and IP law, perfect for business owners.
Podcast:
The Indie Hackers Podcast – Interviews with entrepreneurs, including plenty of IP tips.

⚖️ Legal Cases

Christian Faith Fellowship Church v. adidas AG
Read the case
Rejected “token use” (selling only two hats across state lines) as real use in commerce. Shows the limits of minimal evidence.
Ayres v. The Coughlin Co.
Read the case
Trademark applicant failed to provide sufficient evidence of use—application refused. Reminds businesses to document everything.
Central Manufacturing Inc. v. Brett
Read the case
A “sham” sale to a friend didn’t count as evidence of use; the court dismissed the application. No faking it!
In re Bose Corp.
Read the case
Fraud allegations over inaccurate statements in a trademark renewal. Submitting fake or exaggerated evidence = big trouble.

📣 Expert Invitation

Got questions about trademark evidence, IP, or just want to chat with a human instead of a witty article? Visit strategymeeting.com to schedule a strategy session, connect with real attorneys, and get personalized help. Don’t let myths and mistakes sink your trademark dreams—get advice from the unicorns of IP!

🔚 Wrap-Up Conclusion

The journey from “coming soon” to “show me the goods” in trademark law is paved with real, honest, and sometimes even fun evidence. If you’re in business, gathering and submitting proof is easier than you think—just keep it real and keep it coming. Remember: the USPTO (and your future self) will thank you for avoiding shortcuts, so focus on launching and documenting your success. Now go out there, use your mark, and show them the goods!

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