Should I apply with an intent to use for our US trademark or wait for the actual use in commerce?

Photo of Igor Demcak

Written by Igor Demcak

CEO & Legal Mind

Deciding whether to apply for a US trademark with an intent-to-use (ITU) basis or wait until actual use in commerce is a strategic choice that depends on your specific circumstances and business plans. Applying with an ITU basis can offer several advantages. First, it allows you to secure a priority filing date, establishing your claim to the trademark and providing a potential advantage over others who might try to register a similar mark. This early filing date can be critical in determining your rights to the mark, especially if others file similar marks after your application's filing date.

Furthermore, filing an intent-to-use application provides flexibility and time to develop your business plans, manufacture products, or prepare services associated with the mark before actually using it in commerce. It gives you the opportunity to refine your branding strategy, ensuring that the mark aligns with your overall business objectives. This can be particularly valuable if you are still in the process of finalizing your product or service offerings or if you want to establish a solid foundation for your brand before launching it to the public.

However, it's important to note that eventually, in order to obtain a registered trademark, you will need to demonstrate actual use of the mark in commerce. This typically involves submitting evidence of the mark's use in connection with the specified goods or services. If you choose to apply with an ITU basis, you will have a limited time period to file a "Statement of Use" or request extensions to file the statement, providing proof of use. Therefore, if you are confident that you will be able to use the mark in commerce within a reasonable timeframe, it may be worth considering filing a regular application based on actual use.

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