Trademark applications – intent-to-use (ITU) basis

You may file even before you use your mark, which means you can get an earlier application filing date than a possible competitor. This could mean your mark has priority over someone else’s if a legal conflict develops or could develop — at the USPTO or in the marketplace.

For more information about these advantages, see the Trademark Manual of Examining Procedure (TMEP) section 201.01, 201.02.

Your sworn statement in your application that you have a good faith (bona fide) intention to use the mark in commerce is sufficient evidence of good faith.

This sworn statement will be evaluated only if the application record clearly contradicts this statement. However, if another person takes legal action to prevent your mark from registering, that person may question your good faith. So it’s important to document your efforts to start your business involving the goods and/or services listed in your application. You can document your efforts by showing evidence of your research or development of products or services, market research, steps to acquire distributors or obtain government approval, or other similar efforts. The dates in your documentation should be consistent with the date you filed your application.

For more information about good faith/bona fide intent, see the Trademark Manual of Examining Procedure (TMEP) section 1101.

There are three periods during which you can claim use in commerce before your mark can register:

1. Before your application is approved for publication

• You may claim use in commerce between the date you filed your application and the date the USPTO examining attorney approves your mark for publication in our Trademark Official Gazette (TMOG), a weekly online publication.
• During this period, you would file an Amendment to Allege Use to claim use in commerce (see "How do I claim use in commerce" below for how to file). 

2. Within six months of the Notice of Allowance (NOA) issue date

• You may claim use in commerce within the first six months after the date we issue a Notice of Allowance (or NOA, pronounced “noah”), a notice indicating your mark has been “allowed” for registration (but has not yet registered).
• During this period, you would file a Statement of Use to claim use of your mark in commerce (see "How do I claim use in commerce" for how to file). 

3. Within a granted extension of time after the NOA issue date

• You may claim use in commerce after we issue a NOA if you file a Request for Extension of Time to File a Statement of Use and pay the required fee.
• You must file the Statement of Use within the extension period (see "How do I claim use in commerce" for how to file). 

For more information about when to file an Amendment to Allege Use, Statement of Use, or extension request, see the Trademark Manual of Examining Procedure (TMEP) section 1103, 1104.03, 1106.01, and our ITU application timeline.

• A mark is in use in commerce with goods when (1) the mark is placed on the goods, packaging for the goods, or point-of-sale displays associated with the goods (including webpage displays), and (2) the goods are actually being sold or transported in commerce. 
• A mark is in use in commerce with services when (1) the mark is used in the sale, advertising, or rendering of the services, and (2) the services are actually being rendered in commerce.
• Use in commerce must be in the “ordinary course of trade,” and not just token use made solely to reserve rights in a trademark or service mark.

There are three types of commerce under federal law: 

1. Interstate (between two or more U.S. states)
2. Territorial (between the United States and a territory of the United States)
3. Foreign commerce (between the United States and a foreign country). 

Purely intrastate commerce (use within one state), however, is generally not acceptable use in commerce unless it directly affects or impacts interstate, territorial, or foreign commerce.

Examples of use in commerce: 

• Restaurant services provided at a single-location restaurant that serves interstate travelers
• Billiard parlor services provided in one U.S. state and advertised in more than one U.S. state
• Retail department store services provided in one U.S. state, credit cards issued and catalogs and advertisements mailed to out-of-state customers
• Services offered through the internet, available nationally and internationally to individuals who use interstate telephone lines to access websites.

For more information about use in commerce, see 15 U.S.C. section 1127 (definitions for “commerce” and “use in commerce”) and the Trademark Manual of Examining Procedure (TMEP) section 901-901.04.

To claim use in commerce, you must file either an Amendment to Allege Use or a Statement of Use. These two filings differ only in when they may be filed. Click on the headings below to learn about when you can file these two forms.

You can file an extension request with the required fees.

You must file the first extension request within six months after we issue the NOA. You must pay a fee and include in your request a verified statement of your continued bona fide intention to use your mark in commerce. You will then have one year from the date we issued the NOA to submit your Statement of Use.

You can file four more extension requests. Each of these requests covers a consecutive six-month extension period. We must receive your request before the previous six-month extension period expires. In addition to the requirements for a first extension request, a subsequent extension request must include a showing of “good cause,” which is a statement of your ongoing efforts to make use of your mark, such as market research or steps to acquire distributors.

If you request all five extensions, you have a maximum possible extension time of 36 months from the date we issued the NOA to file your Statement of Use.

If you think you might need more time to correct a type of deficiency that must be corrected before the deadline for filing the Statement of Use—for example, to correct issues with your specimen or dates of use—you could preemptively file an extension request when you file your Statement of Use or afterwards (if you have not already filed the maximum of five of extension requests and there is time remaining in a previously granted extension period). This is called an “insurance” extension request. If you cannot fix your Statement of Use, your application will be abandoned and your only option will be to file a new application with new fees. 

You must timely file a Statement of Use. If you do not timely file an acceptable Statement of Use, your application will be abandoned. This means that we can no longer process your application and your mark will not register as a trademark or service mark. In this situation, we do not refund filing fees. To restart the processing of your application, you must file a petition to revive your application within two months of the date we issue the notice of abandonment, and include the appropriate fee. If you do not file the petition within that timeframe, we will deny your petition as untimely and your only option would be to file a new application with new fees.

For more information about filing an extension request, see the Trademark Manual of Examining Procedure (TMEP) section 1108-1108.05. To file an extension request, go to the online form in the Trademark Electronic Application System (TEAS).

To file a petition to revive your application, go to the online form in the Trademark Electronic Application System (TEAS).

No. We will likely not accept your Amendment to Allege Use or Statement of Use if you:

• Do not provide all the required information and documentation listed above for filing an Amendment to Allege Use or Statement of Use, such as the statement that the mark is in use in commerce or a specimen
• Change the name of the owner in the Amendment to Allege Use or Statement of Use without properly explaining or documenting the change
• Submit unacceptable specimens or dates of use
• Do not timely file your Amendment to Allege Use or Statement of Use.

If we do not accept your Amendment to Allege Use or Statement of Use, we will send you an official letter (office action) explaining the decision and, if possible, how to fix the issues.

If you cannot fix the issues with your Amendment to Allege Use, you have the option to withdraw it. Your application will then return to an intent-to-use basis. In this situation, we will not refund the Amendment to Allege Use filing fee and you will have to claim use in commerce at a later date to register your mark.

You must try to fix any issues with your Statement of Use. You may not withdraw a Statement of Use and we will not refund the Statement of Use filing fee. If you think you might need more time to correct a type of deficiency that must be corrected before the deadline for filing the Statement of Use—for example, to correct issues with your specimen or dates of use—you could preemptively file an extension request when you file your Statement of Use or afterwards (if you have not already filed the maximum of five of extension requests and there is time remaining in a previously granted extension period). This is called an “insurance” extension request. If you cannot fix your Statement of Use, your application will be abandoned and your only option will be to file a new application with new fees. 

For more information about fixing issues with an Amendment to Allege Use or Statement of Use, see the Trademark Manual of Examining Procedure (TMEP) section 1104.11, 1109.16-1109.16(e). For more information about insurance extension requests, see TMEP section 1108.03, 1109.16(c).

When your Amendment to Allege Use is accepted, your application will no longer be based on your intent to use your mark in commerce, but on actual use of your mark in commerce. Once an Amendment to Allege Use is filed, a trademark examining attorney will examine it. If the Amendment to Allege Use meets all legal requirements and there are no refusals that need to be addressed, we will approve your mark for publication in the online Trademark Official Gazette or TMOG. The TMOG is a weekly online publication that notifies the public that we will be registering your mark. Approximately one month after your mark is approved for publication, your mark will publish in the TMOG.

Within 30 days of the publishing date, anyone who believes their business will be harmed if we register your mark may file an objection (or “opposition”). An opposition is similar to a federal court proceeding, but is held before the Trademark Trial and Appeal Board (TTAB), a panel of administrative judges who review and decide these matters. An opposition can extend the time between publication of your mark in the TMOG and registration of your mark. If someone files an opposition against your mark, we will let you know. You may want to hire an attorney, as oppositions are complex proceedings.

Once the 30-day opposition period (including any extensions of time) has expired and/or any oppositions are resolved in your favor, we will register your mark.

When your Statement of Use is accepted, your mark is not subject to the opposition period again. We will register your mark and publish notice of registration in the TMOG.

Once we issue your trademark registration, we'll upload the official registration certificate to the Trademark Status and Document Retrieval (TSDR) system. Once you receive the registration certificate, you may start using the registration symbol ® in connection with your goods and/or services.