1A Gilson on Trademarks § 3.03

Summary

• [1] In General

  In order to establish federal trademark infringement under Section 32(1) of the Lanham Act, it is imperative that the plaintiff plead and prove that the defendant’s use or intended use of the infringing mark occurs “in commerce.”1 A count alleging a violation of the Section that does not so state is subject to dismissal.2 Similarly, to bring a successful action under Section 43(a) for unfair competition or Section 43(c) for dilution, the plaintiff must also plead and show the defendant’s use “in commerce.”3