The United States Patent and Trademark Office (USPTO) allows applicants to file for trademark protection on an “intent-to-use” (ITU) basis. This means you do not have to be actively using your brand in commerce at the time of filing. Instead, you are permitted to secure an early filing date-effectively establishing priority over others who may later attempt to register or use a confusingly similar mark.
In practical terms, an ITU application allows you to “call dibs” on a name before launch. This can be especially valuable for businesses still in the development phase, such as startups, healthcare practices, or product lines preparing to enter the market. By filing early, you reduce the risk that another party will claim rights to your desired brand while you are building your business.
However, an intent-to-use application is not a mechanism to reserve a mark indefinitely. The USPTO requires that applicants have a bona fide (good faith) intention to use the mark in commerce at the time of filing. This is more than a vague idea-it should be supported by objective evidence, such as business plans, product development, marketing strategies, or steps taken toward launching the goods or services.
Importantly, registration will not issue until you demonstrate actual use in commerce. “Use in commerce” is a legal term of art, meaning the mark must be used in the ordinary course of trade-not merely token use-on or in connection with the goods or services listed in the application. For goods, this typically requires the mark to appear on packaging, labels, or the product itself, and that the goods are sold or transported in commerce. For services, the mark must be used in the advertising or sale of the services, and the services must actually be rendered.
After the USPTO approves your application, it will issue a Notice of Allowance. At that point, you must submit a Statement of Use demonstrating that the mark is in commerce. If you are not yet using the mark, you may request extensions of time in six-month increments, for up to a total of three years from the Notice of Allowance date. Failure to either submit proof of use or timely request an extension will result in abandonment of the application.
While the ITU process provides flexibility, it also requires careful planning. Filing too early without a clear path to launch can lead to unnecessary extension costs or abandonment. Filing too late, on the other hand, may expose you to the risk that another party secures priority first. A thoughtful trademark strategy ensures that your application aligns with your business timeline and supports long-term brand protection.
Revolution Law Group is located in Greensboro, NC, and serves individuals and small businesses throughout the Triad and surrounding areas. To contact us please visit Revolution.law or call 336-333-7907.
The information included here is for informational purposes only, is not exhaustive of all considerations when creating documents, is not intended to be legal advice, and should not be relied upon for that purpose. We strongly recommend you consult with an attorney and do not attempt to create your own documents.
Trademark Registration
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How long can I hold an intent-to-use trademark before I have to use it?After your mark is allowed, you have six months to file a Statement of Use. You can request extensions in six-month increments for up to three years total from the Notice of Allowance date.
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What counts as "use in commerce"?Use in commerce means bona fide use of the mark in the ordinary course of trade. For goods, this includes placing the mark on products or packaging and actually selling or transporting them. For services, it involves using the mark in advertising and actually providing the services.
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Do I need proof of intent when I file an ITU application?You are not required to submit proof upfront, but you must have a bona fide intent to use the mark. If challenged, you should be able to show documentation such as business plans, product development efforts, or marketing preparations.
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What happens if I never use the trademark?If you fail to submit a Statement of Use or request extensions within the allowed time, your application will be abandoned and you will lose your priority date.
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Is an intent-to-use application as strong as a use-based application?An ITU application can be just as powerful in establishing priority, but it does not result in registration until actual use is proven. Until then, your rights are limited compared to a mark already in use.