Current use requirement at court discretion saturates the courts – the plan achieves greater uniformity and keeps countless cases from the courts.

It is time for Congress to empower “weaker” trademark owners by way of added protections to the Lanham Act that achieve greater uniformity in the application of the use requirement. In doing so, Congress would finally provide protection to trademark owners whom the Act, as currently written, denies. In order to ensure the Act’s use requirement is uniform in its application, Congress should amend the Act to broaden the nature of the activities that constitute use and ensure the use inquiry is a qualitative analysis that explicitly includes bona fide but minimal use. The current use requirement is unpredictable and blurry, given that what constitutes a de minimis quantum of use is ultimately at the court’s discretion and is not readily predictable by market participants. The regularity of federal cases litigating the use issue can be explained by the lack of a bright-line rule specifying what types of activity, and what quantum of use, will satisfy the use threshold. Without any change or development in the law, one can expect that actions will continue to saturate the courts. By broadening and clarifying the use provision — including specifying that certain pre-sales activity constitutes use and loosening the quantum of use standard — Congress can keep countless lawsuits from the federal court system while strengthening the underlying spirit of the Act.