A trademark application filed with the United States Patent and Trademark Office must meet certain requirements to be eligible for registration. At some point, almost all trademarks must be deemed “in use” before the Trademark Office will register them. “In use” is short for “in use in commerce,” which itself is short for “in use in commerce that can be regulated by Congress,” i.e. interstate commerce or activities that impact or affect interstate commerce. Often, determining whether a trademark is in use is not a difficult act. A restaurant has been operating for years with customers from all over the state? In use. Products are branded and sold to customers across the country? In use. A blog gets traffic everyday from all over the world? In use. But the law is defined by its contours, its grey areas, and beta testing of software is one of them. Beta…
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