Analogous use still suffers from heavy preemption which means the AFF is key – this is the court case their evidence cites.

USDA DC Circuit 08 – United States Court of Appeals, District of Columbia Circuit, April 29, 2008, “AKTIESELSKABET AF 21 NOVEMBER 2001 v. FAME JEANS INC (2008)", Findlaw, https://caselaw.findlaw.com/court/us-dc-circuit/1471864.html /$antiP/

Since Fame Jeans filed its application on January 9, 2004, Bestseller must establish use, either actual or constructive, before that date.7  Constructive use can arise under § 7(c), which grants priority, based on filing date, to a U.S. application or to a foreign application that was followed by a timely U.S. application under § 44(d).  Bestseller filed a U.S. application on December 6, 2004, based on its 1991 Danish registration.   It neither complied with the six-month timeliness requirement of § 44(d) nor even filed its application under § 44(d).  Therefore, Bestseller cannot demonstrate any constructive use prior to Fame's filing date.   However, Bestseller has adequately alleged actual use.   Although the complaint does not set forth trademark use to earn Bestseller rights in the Jack & Jones mark, an opposer who has made enough “analogous” use can still defeat a registration.   See Malcolm Nicol & Co. v. Witco Corp., 881 F.2d 1063, 1065 (Fed.Cir.1989) (quoting 3 McCarthy, supra, § 20:4 (1984)).

First, Bestseller fails to allege actual use in the most straightforward way, by showing its own protectible right to the Jack & Jones trademark in the United States.   At common law, “prior ownership of a mark is only established as of the first actual use of a mark in a genuine commercial transaction.”  Allard Enters., Inc. v. Adv. Programming Res., Inc., 146 F.3d 350, 358 (6th Cir.1998).   The 1988 amendments to the Lanham Act codified a standard of “use in commerce,” necessary for a valid trademark registration, which means “the bona fide use of a mark in the ordinary course of trade,” including, for a trademark, attaching the trademark to goods.  15 U.S.C. § 1127.   In any case, “sporadic or minimal” sales are not sufficient.  Allard Enters., 146 F.3d at 359;  see also Zazu Designs v. L'Oreal, S.A., 979 F.2d 499, 503 (7th Cir.1992) (“A few bottles sold over the counter ․ and a few more mailed to friends” are not sufficient use.).   While a single sale may indicate the first use of a mark, it must be the beginning of “continuous commercial utilization.”  Allard, 146 F.3d at 358.   Obviously, as § 1052(d) requires, such use must also be “in the United States.”   See Person's Co. v. Christman, 900 F.2d 1565, 1568-69 (Fed.Cir.1990) (T-shirt sales in Japan are not “use in United States commerce”).

However, Bestseller need not “meet the technical statutory requirements to register ․ [a mark] to have a basis for objection to another's registration.”  Nat'l Cable Television Ass'n v. Am. Cinema Editors, Inc., 937 F.2d 1572, 1578 (Fed.Cir.1991).   Section 2(d) requires only “use[ ] in the United States,” and adoption of the mark by use analogous to strict trademark use will therefore suffice.  T.A.B. Sys., Inc. v. PacTel Teletrac, 77 F.3d 1372, 1375 (Fed.Cir.1996).   An opposer may rely on myriad forms of activity besides sales themselves, including, among others, regular business contacts, after-sales services, advertising of various forms, and marketing.  First Niagara Ins. Brokers, Inc. v. First Niagara Fin. Group, 476 F.3d 867, 868-69 (Fed.Cir.2007);  Johnny Blastoff, Inc. v. L.A. Rams Football Co., 188 F.3d 427, 434 (7th Cir.1999);  Malcolm Nicol, 881 F.2d at 1064.   Even marketing of a trademarked product before the product is ready for sale has the potential to defeat a rival's registration.   See Old Swiss House, Inc. v. Anheuser-Busch, Inc., 569 F.2d 1130, 1133 (C.C.P.A.1978).   Still, desultory marketing such as sending out occasional press releases is not enough.  Id. Analogous use must be “of such a nature and extent as to create public identification of the target term with the opposer's product.”   T.A.B. Sys., 77 F.3d at 1375.

Bestseller's allegations fall short of showing a sale, whether in the United States or to an American abroad, as the beginning of a continuous commercial exploitation of the Jack & Jones mark in the United States;  but they do give fair notice of a claim to analogous use.   While Bestseller clearly sells millions of dollars worth of Jack & Jones branded clothing elsewhere in the world, it fails to allege any sales in the United States or to Americans.   The closest Bestseller comes is saying this clothing “has been available to U.S. consumers through Bestseller's foreign customers and stores as well as through re-sales on eBay.com.” Am. Compl. ¶ 14.   This allegation does not imply any American sales at all, much less continuous commercial sales.