USPTO Trademark Application: Filing Basis

USPTO Trademark Application: Filing Basis

A USPTO trademark application can be confusing when trying to determine not only the difference between filing basis (“in use” and “intent to use” applications), but which best suits your needs. The primary difference between these two versions comes down to whether your trademark is already in use commercially, or not, at the time of your application. Ultimately, the circumstances around your mark and how you plan to use it will determine the best trademark application to submit.


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What are the Differences Between “Intent to Use” and “In Use” Trademark Applications?

Much like their names infer, the main difference between “intent to use” and “in use” trademark applications involves the current usage of it. Are you already using it in commerce, or do you not have a need to do so yet but want it ready for future use? These are the questions you need to ask yourself when submitting a trademark application.

Below is a quick overview of these two trademark application options:

In Use (Actual Use)

When applying for a trademark that is already in use for commerce relating to goods or services currently sold with this mark, Section 1(a) Actual Use Application is the correct option to choose for your trademarking plans. This means that you have put your product out on the market for customers to purchase or consume (if it’s a YouTube channel or blog). 

Intent to Use Application

If you have plans to use your trademark in the future, but as of yet have not, a Section 1(b) Intent to Use application is ideal for your situation. If you have a coming soon sign on your website, you have not launched, never sold a product, or have not put any blog posts or videos out for consumption (if filing for your blog or YouTube channel), then you’ll have to file an Intent to Use application. 

If you have a coming soon sign on your website, you have not launched, never sold a product, or have not put any blog posts or videos out for consumption (if filing for your blog or YouTube channel), then you'll have to file an… Click To Tweet


USPTO Trademark Application Process and Qualifications

Trademark owners that are currently using their trademark will apply by using an “in use application basis. For its registration to be accepted, a Trademark Examining Attorney must have an example of it showing its use in commerce when filed. Failing to do so will delay the process because an Office Action goes to the applicant demanding an active example of the trademark. 

The owner will also have to share with the United States Patent and Trademark Office (USPTO) when the mark was first introduced into commerce and used. This means that the trademark is currently in use commercially when relating to products and services listed on the application. For example, if you were to submit an “in use” application for belts and hats, but you only show the mark used for hats, then belts do not qualify for this option. 

In this scenario, one can apply under “intent to use” concerning the belts since the trademark has not yet entered commercial use. This flexibility has helped many up and coming entrepreneurs develop branding for products, slogans, and even product names, and have the trademark protection they need before ever entering commercial use. 

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Don’t Underestimate the Power of a Trademark

Protecting current and future business initiatives and products is of critical importance to maintain competitiveness, highlighting the importance of trademark law. Whether you decide to use an “intent to use” trademark application option or “in use”, this process helps support your efforts to protect your property in a competitive marketplace. And don’t forget, before even starting the trademark process, you need to do a trademark search first. 

Ready to register your trademark?

Find out more about the USPTO trademark application process.