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[Jeff Rowberg]

I've just wrapped up a successful Kickstarter campaign for a design I've been working on for months. For those of you unfamiliar with the Kickstarter platform, it's a way of crowdsourcing project funding without giving up any ownership rights; you provide rewards for different levels of pledges, and if the pledges meet a minimum goal, you get the money and they get the rewards. It's a great platform.

Anyway, I'm looking to register a trademark for the product, and I'm wondering if "Use in commerce" applies to this situation since I haven't technically sold anything. One of the more widely selected rewards was for a pre-ordered product, so people did give me money in return for ultimately receiving one or more of the items. I have a working prototype, and the funding will be used to finish the prototype process and start manufacturing (and hopefully gather some investor interest as well!). But the actual retail product doesn't physically exist yet.

Does this qualify for "Use in commerce," or do I still need to stick with the "Intent to use" approach?

    Jeff

[JSonnabend]

Assuming your mark will be used in connection with a product, as opposed to a service, you will have to have a bona fide distribution of at least one of the products in interstate commerce, typically a shipment across state lines.

- Jeff

[Jeff Rowberg]

It will be used with/on a product. So in that case, I would go with the Intent to Use first if I want to make sure nobody else does, right?

    Other Jeff

[JSonnabend]

If you want to make sure no one registers the mark first, then yes, you should file an ITU.  Of course, if there is a previous registration and/or pending application for a conflicting mark, you may be foreclosed from registration.  Also, registration does not necessarily mean you are free to use the mark.

- Jeff