TM Specimine and use in commerce for a product - Website

[BobRoberts]

My understanding is that a website will constitute "use in commerce" for a product, provided
the website shows the Mark used as a valid trademark,
close to a picture of the goods,
provides an online order means or a telephone number where the product can be ordered, and
the seller has the means to ship the product over state lines.
-This would be independent of any actual local/intrastate sales.

My understanding is that a website can be used as a specimine provided
the website shows the Mark used as a valid trademark,
close to a picture of the goods, and
provides an online order means or a telephone number where the product can be ordered.


Are these understandings correct?

Thanks

[JSonnabend]

A website can act as "point of sale" materials provided there is a mechanism for actually selling on the website.  Search for the Dell case in the TTAB (or Fed Cir?) on this.

Remember, though, that the goods have to be put into (or otherwise affect) interstate commerce before there is a use.  That doesn't mean the website has to "have the means to ship the product over state lines," but the product has to have been.

- Jeff

[Marke]

Note that a website specimen need not necessarily have a picture of the goods.  See In re Sones, 93 U.S.P.Q.2d 1118, 1123 (Fed. Cir. 2009) ("[W]e hold that a picture is not a mandatory requirement for a website-based specimen of use, and that the test for an acceptable website-based specimen, just as any other specimen, is simply that it must in some way evince that the mark is 'associated' with the goods and serves as an indicator of source.").

http://www.cafc.uscourts.gov/opinions/09-1140.pdf

[JSonnabend]

Marke, that's an interesting case.  Thanks for posting the information on it (I've never had an issue of lack of an image, but it's good to have the case in the back pocket for future use).

- Jeff

[BobRoberts]

Thanks Jeff and Marke...

I'll look at those two cases...

[Marke]

My pleasure, guys.