Technically, no—but that doesn’t mean you’re out of options if you’re gearing up to launch.
In the United States, a trademark must be “used in commerce” before it can be officially registered. This requirement actually comes from Article 1, § 8 of the U.S. Constitution, which gives Congress the power to regulate interstate commerce. (Patents and copyrights don’t have this same requirement.)
Still, the law gives you a powerful tool to protect your brand before you launch: the Intent-to-Use (ITU) application. For new businesses, it’s a smart way to stake your claim early and lock in priority in a first-to-file system.
Early helps secure your brand, fend off competitors, and avoid the risk of having to rebrand if someone else beats you to the punch. If you’re serious about building a business, locking in your rights before launch is a smart move.
What Is an Intent-to-Use Application?
An ITU application lets you apply for a trademark before launching, provided that you have a genuine, good-faith plan to use it in commerce soon. This is the “bona fide intent” requirement. You’re promising the USPTO that you have a plan and will get them the details once it comes to fruition.
Once filed, your priority date is locked in. After the USPTO clears your application, you’ll receive a Notice of Allowance. You’ll then have up to three years (with extensions) to show actual use in commerce.
What Is an Intent to Use?
Filing an ITU requires more than just liking a name or thinking you might use it someday. To meet this requirement, you should be able to show evidence of concrete steps you’re taking to launch your business or product.
Examples include:
• Business plans or pitch decks showing how you plan to use the mark
• Product prototypes, mockups, or samples
• Market research or branding materials
• Website or app development in progress
• Conversations with manufacturers, designers, or suppliers
• Draft marketing or advertising content
• Legal agreements or licensing plans involving the mark
You don’t need to have everything finished, but the intent must be real—and it should be documented. If your application is ever challenged, being able to show this kind of preparation can make the difference between keeping or losing your rights.
What’s the Catch?
Since you’ll still need to prove actual use before your trademark is officially registered, the catch is more steps, more filings, and additional fees.
Here’s what to expect:
- Additional filings: Following your Notice of Allowance, you’ll need to submit a Statement of Use to show that you’ve started using the mark in commerce and including proof.
- USPTO fees: Each Statement of Use comes with a government filing fee (currently $100 per class of goods/services). If you’re not ready yet, you can request a six-month extension—also $125 per class—with up to five extensions allowed.
- Timeline: You have up to three years from the Notice of Allowance to begin using the mark and complete the registration process.
- Enforcement: up to five extensions allowed. ITU application gives you a priority date, but you can’t actually enforce trademark rights—like suing for infringement—until the mark is registered and in use.
It’s a great option for locking in rights early—but it comes with some ongoing responsibilities. Be ready to follow through and budget for the extra filings to make your registration official.
When Can I Make It Official–“Use in Commerce”?
You can finalize your ITU as soon as the trademark is being used to offer goods or services across state lines.
For goods, that usually means:
- The product has been sold or shipped to customers in more than one state
- The trademark appears on packaging, labels, tags, or the product itself
For services, it usually means:
- The service is being offered or performed for customers in more than one state
- The trademark appears in advertising, websites, brochures, or social media connected to the service
Just reserving a domain name or printing business cards isn’t enough.
Confirming use in commerce is just one of many areas where working with a trademark attorney can be especially helpful.
Questions?
Have questions about whether an ITU is right for you? We’re happy to help.