Trademark Intent to Use vs In Use

To register a trademark, the mark must either be currently in use or intended to be used in commerce.

“Intent to Use”
You must file on the basis of “intent to use” if the mark you are registering has not yet been used and is not currently in use but you have real intent to use it in the future. If you file on “intent to use,” you must begin actual use of the mark in commerce before the United States Patent and Trademark Office (USPTO) will register the mark. Furthermore, you must file an Allegation of Use – a sworn statement attesting to the use of the mark in commerce – and a specimen of use in the future for an additional fee.This Allegation of Use with specimen must be filed either:

  • on or before the day that the USPTO examining attorney approves the mark for publication; OR
  • on or after the day the USPTO issues the Notice of Allowance (usually about twelve weeks after the date the mark is published). The applicant must submit a Statement of Use with specimen within 6 months of the Notice of Allowance, or request a six-month extension of time.

“In Use”
If the mark you are registering for is already being used in commerce, you may file an application on the basis of “use” in which you will list the date of first use of the mark. In this case, the specimen of use will be submitted at the time of application for no additional fee.

For more details, read about the complete Trademark Process.