using the mark. See Ford Motor, 930 F.2d at 297(citing Tally-Ho Inc. v. Coast Community College Dist., 889 F.2d 1018, 1022-23 (11th Cir.1989)). Trademark rights are acquired "through actual prior use in commerce." Tally-Ho, Inc., 889 F.2d at 1022(citing United States v. Steffens, 100 U.S. 82, 25 L.Ed. 550 (1879)). Because trademark rights arise only in connection with commercial activity, "actual and continuous use is required to acquire and retain a protectable interest in a mark." Id. at 1022-1023(footnote omitted). The party asserting ownership of the trademark must present evidence that the trademark has achieved significant market penetration; sales volume must be more than de minimis. See Lucent Information Management, Inc. v. Lucent Technologies, Inc., 186 F.3d 311 (3d Cir.1999) (<HOLDING>). For 'either party to obtain trademark rights
holding that infringement laws simply do not apply to a nontrademark use of a mark holding that the defendants use of the domain name moviebuffcom violated plaintiffs trademark rights in the mark moviebufp holding limited use of a mark did not constitute prior use in commerce sufficient to establish rights in the mark holding that concurrent use of same mark on similar product was sufficient to demonstrate a likelihood of confusion holding that use of metatags constitutes use in commerce but finding no trademark violation because defendants only used mark in metatag to fairly identify the content of his websites and did so in good faith that is without the intention of capitalizing on the plaintiffs reputation and goodwill