Definition
"In actual use" is a qualifying phrase appearing in legal texts to distinguish items or rights that are presently, actively, and genuinely employed for their intended purpose from those that are merely owned, possessed, stored, or held in reserve. The phrase functions as a limiting modifier — it narrows a broader category to those members of the category that are being put to real, current use rather than hypothetical, potential, or incidental use.
The phrase appears in at least two distinct legal contexts:
1. Customs and import law. In federal customs statutes, "wearing apparel in actual use" and similar formulations identify personal property that a traveler is actually wearing or actively using during travel, as opposed to new or unused goods being brought in for commercial purposes. The phrase excludes goods held for sale or distribution (merchandise) and includes only items integrated into the traveler's current personal use.
2. Trademark and intellectual property law. A mark is "in actual use" when it is genuinely deployed in commerce to identify the source of goods or services — not merely registered, not used internally, and not used in a token or sham transaction designed only to preserve rights. This is the standard distinguishing bona fide commercial use from technical or constructive use.
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Common Language
Modern common usage (Wiktionary): "In actual use" in ordinary English means something is currently being used, as opposed to being stored, retired, or available but idle. It carries a sense of present-tense, real-world activity.
Historical common usage (Webster's 1913): "Actual" is defined as "existing in act or reality; really acted or acting; in fact; real; — opposed to potential, possible, virtual, or theoretical." "Use" means the act of employing something for a purpose.
The ordinary meaning and the legal meaning are close but not identical. In law, the phrase does more than describe present activity — it functions as a gatekeeping standard that excludes constructive, nominal, or token use. A legal reader must ask not just whether something is being used, but whether the use is genuine, non-commercial (in the customs context), or bona fide and public (in the trademark context). The everyday sense of "actually using" does not carry this freight.
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Common Confusion
"In actual use" is sometimes conflated with "constructive use" or "use in commerce" in trademark contexts. These are distinct: constructive use establishes priority by operation of law (typically through federal registration) regardless of actual deployment. "In actual use" requires demonstrable, real-world activity. Similarly, in customs law, travelers sometimes conflate "in actual use" with "personally owned" — but ownership alone does not satisfy the phrase; the item must be functionally integrated into the traveler's current journey or activity.
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Why It Matters in Research
The phrase is deceptively simple and its meaning shifts with context. Researchers working in customs law, trademark law, or any regulatory area where exemptions or rights depend on actual rather than theoretical activity must be alert to how courts and agencies have interpreted "actual use" in the specific statutory or regulatory scheme at issue.
In customs law, the phrase appears in exemption provisions for personal effects. Bouvier's gloss — that "not merchandise" and "in actual use" are explanatory of each other — signals that courts have treated the phrase not as adding independent content but as reinforcing a single underlying concept: the item is part of the traveler's genuine personal life, not commercial inventory. Researchers should treat the two phrases as mutually illuminating when interpreting the scope of personal effects exemptions.
In trademark law, the "use" requirement is the foundation of U.S. trademark rights, which are use-based rather than registration-based. The distinction between actual use and token use became a significant litigation issue as parties sought to establish priority with minimal commercial activity. The Lanham Act's requirement of "use in commerce" has been interpreted to demand genuine, public, source-identifying use — not a single internal transaction or a sale staged only to create a record. Researchers approaching pre-Lanham Act trademark materials (pre-1946) should be aware that the vocabulary was less formalized; "actual use" in older cases may not map cleanly onto the modern statutory framework.
In both contexts, watch for historical sources that treat "actual use" as self-explanatory. Courts and commentators historically assumed the phrase carried its plain meaning without elaboration, which can make older materials thin on doctrinal analysis. The real interpretive work often appears in later appellate decisions and agency guidance rather than in the foundational statutes or early treatises.
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Historical Dictionary Support
Bouvier's is the primary historical dictionary source for this phrase. Bouvier treats "in actual use" in the customs context and draws the critical connection to "not merchandise" — reading the two phrases as synonymous or at least co-defining. This interpretive move (treating the exemption as a unified concept rather than parsing each word independently) reflects the approach courts have historically taken when construing personal effects exemptions: the question is always whether the item belongs to the traveler's personal life or to trade.
Bouvier does not address the trademark application of the phrase, which is not surprising given that modern trademark use doctrine developed substantially after Bouvier's major editions. Researchers relying on Bouvier for trademark-related inquiries involving "actual use" will find the dictionary unhelpful and should turn to twentieth-century sources.
No other historical dictionaries in the current corpus provide entries for this phrase. The relative silence of historical legal dictionaries on "in actual use" as a standalone term reflects its nature: it is a phrase that gains meaning from its statutory or doctrinal context rather than a freestanding term of art.
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Jurisdictional Note
In customs law, the phrase is governed by federal statute and interpreted by federal courts and Customs and Border Protection, so state-level variation is not relevant. In trademark law, "actual use" is a federal doctrine under the Lanham Act, though state common law trademark rights also depend on actual use in commerce within the relevant geographic market. State trademark claims may apply a looser or differently defined use standard than the federal framework.
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Encyclopedia Cross-Reference
Trademark Use in Commerce and the Use Requirement (The Law Mind Intellectual Property Encyclopedia) — primary reference for the trademark application of actual use doctrine.
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