One is nice. Two is better. You may not have to get to three. Christian Faith Fellowship Church in Zion, Illinois registered the name and design mark “ADDAZERO” for its fundraising campaign. Adidas, the international sportswear powerhouse, tried to register “ADIZERO” for clothing. The USPTO refused registration based on a likelihood of confusion with the Church’s trademark. Adidas thought it found a chink in the Church’s registration because the Church had only sold two hats to out-of-state residents. So Adidas brought a cancellation proceeding before the Trademark Trial and Appeal Board. The TTAB held that two sales were not enough and cancelled the trademark. On appeal, the Federal Circuit Court of Appeals reversed the TTAB. The Court held that trademark law only requires use in commerce that is an activity regulated by commerce. The two sales to out-of-state residents were enough.

WHY YOU SHOULD KNOW THIS. In every used based trademark application, the applicant has to state that the mark was used in interstate commerce at the time of the application. If that statement is not true, the registration is at risk of being cancelled. This case says that two sales that crossed state lines were enough for interstate commerce. It remains to be seen if this case will apply in every context. So when applying for a trademark registration, if there’s any doubt about use, the best course is to file an intent to use application until use can be firmly established.