“Use in commerce” requires actual use in the United States in commerce regulated by Congress, such as interstate commerce or commerce with countries outside of the United States.  Shipment of goods to an out of state address in the normal course of business qualifies as use in commerce.  Commerce that is purely intrastate will not support federal registration.  Note, however, that a restaurant with a single location in a single state is considered to participate in interstate commerce if it advertises in publications that cross state lines, posts billboards that advertise services on interstate highways, or in some other way reach out to clientele from out of state.  Marks used only in intrastate commerce can be registered a state level.

 

Use in commerce also requires that the mark be used as a trademark (i.e. as an indicator of source).  Thus, for federal registration, a claim of use in commerce must be supported by an acceptable specimen of use.