Using crowdfunding sites like Kickstarter, Indiegogo, and GoFundMe are great ways to generate funding for your projects, but can you use them to prove use in commerce for your trademarks? The short answer is no, you cannot. In this blog post, we’ll explain why collecting money through a Kickstarter campaign does not count as use in commerce for trademark purposes—even if your project is fully funded.
What is use in commerce?
Use in commerce is one of the requirements for obtaining a federal trademark registration in the United States. Use in commerce means using your trademark in selling or transporting your goods out of state or in providing services to customers who live outside your state. For example, you might grow oranges in Florida and sell it to buyers in Ohio or Vermont.
Use in commerce also means that the actual good or service that you are trademarking is presently available for consumers to have. Prepayment does not count as use in commerce. For example, if you are selling a new type of oatmeal cookie, you need to actually bake and ship the cookies to your customers before you can claim use in commerce. You can’t just collect money from people who want to buy your cookies in the future.
Why does Kickstarter not count as use in commerce?
Kickstarter is a popular crowdfunding platform that allows people to raise money for creative projects. Many entrepreneurs use Kickstarter to launch new products or services that they hope to bring to the market. However, Kickstarter does not count as use in commerce for trademark purposes.
Why not? Because Kickstarter is not a store or a marketplace where you can buy or sell goods or services. It is a platform where you can pledge money to support a project that may or may not be completed. When you back a project on Kickstarter, you are not buying anything. You are making a donation or an investment that may or may not be rewarded with a product or service in the future. Even if the reward that the product that’s being trademarked, the product is not available at the time of the pledge.
Therefore, collecting money through a Kickstarter campaign does not mean that you are using your trademark in commerce. You are not selling or transporting your goods or services across state lines. You are not providing your goods or services to customers who can have them right away. You are only promising to deliver them at some point in the future, if everything goes well.
What about promotional merchandise or advertising?
You might think that giving away promotional merchandise or advertising your product or service on social media counts as use in commerce. After all, you are using your trademark to promote your brand and attract customers, right? This is also wrong.
Promotional merchandise or advertising that is not the actual good or service being trademarked also does not count as use in commerce. For example, if you are trademarking a new type of oatmeal cookie, you can’t claim use in commerce by giving away t-shirts with your logo on them or posting pictures of your cookies on Instagram. You need to actually sell or provide your cookies to customers who can eat them.
Promotional merchandise or advertising is only incidental to the sale of goods or services. It does not show that you are using your trademark in the ordinary course of trade. It only shows that you intend to use your trademark in the future, which is not enough for trademark registration.
In this blog post, we discussed why collecting money through a Kickstarter campaign does not count as use in commerce for trademark purposes. We also explained why promotional merchandise or advertising is not sufficient for proving use in commerce as well. See our earlier blog here for more information on how to prove use in commerce. You can also contact us for more information.