In Use vs. Intent to Use: Which trademark application should you choose?

If you want to register your trademark with the U.S. Patent and Trademark Office (USPTO), you need to specify the legal reason for why you are allowed to do so. This is known as a filing basis. There are multiple filing bases and you must satisfy all the legal requirements for the filing basis that you choose.

Man selling fruit

If you want to register your trademark with the U.S. Patent and Trademark Office (USPTO), you need to specify the legal reason for why you are allowed to do so. This is known as a filing basis. There are multiple filing bases and you must satisfy all the legal requirements for the filing basis that you choose.

The most common filing bases are use in commerce and intent to use. In this blog post, we will explain what these terms mean and how they affect your trademark application process.

Use in commerce

Use in commerce means using your trademark in selling or transporting your goods out of state or in providing services to customers who live outside your state. For example, if you sell clothing online and ship it across the country, or if you offer consulting services over the phone or online to clients in different states, you are using your trademark in commerce.

To register your trademark on the basis of use in commerce, you need to provide evidence that you are using it in commerce. This means you need to submit a specimen showing how you use your trademark on your products, packaging, labels, tags, website, advertisements etc. You also need to provide the date you first used your trademark anywhere and the date you first used it in commerce.

The advantage of filing a use-in-commerce application is that it can be faster and simpler than an intent-to-use application. You do not need to file any additional forms or fees after your initial application. However, you can only file a use-in-commerce application if you have already started using your trademark before filing.

Intent to use

Intent to use means that you have not started using your trademark in commerce yet, but you have a good faith intention to do so within the next three to four years. For example, if you have created a logo for your upcoming clothing line but have not launched it yet, or if you have planned to expand your consulting services into other states but have not done so yet, you have an intent to use your trademark.

To register your trademark on the basis of intent to use, you do not need to provide any evidence of use at first. You only need to declare that you have a bona fide intention to use your trademark in commerce in the future. However, you cannot actually register your trademark until you show that you have started using it in commerce and you file the proper forms and fees with the USPTO.

The advantage of filing an intent-to-use application is that it allows you to reserve your trademark before anyone else does, even if you are not ready to launch your products or services yet. It also gives you more time to prepare and plan your marketing strategy. However, an intent-to-use application can be more complex and costly than a use-in-commerce application. You will need to file additional forms and fees within certain time frames before your mark may register.

Here is a summary of the main differences between use in commerce and intent to use:

Use in commerce

  • You have already started using your trademark in commerce

  • You need to provide evidence of use and dates of first use

  • You do not need to file any additional forms or fees after your initial application

  • Your application can be faster and simpler

Intent to use

  • You have not started using your trademark in commerce yet

  • You do not need to provide any evidence or dates of first use

  • You need to file additional forms and fees within certain time frames after receiving a notice of allowance

  • Your application can be more complex and costly

We hope this blog post has helped you understand the difference between filing for an in use trademark versus an intent to use trademark. If you have any questions or need help with your trademark application, please contact us today for a consultation.