One of the first questions on a trademark application is also one of the most consequential, and it is easy to answer incorrectly without realising. Are you already using the mark in commerce, or do you intend to?
Getting this wrong is not a technicality. Claiming use when you are not genuinely selling can render a resulting registration vulnerable to cancellation, and the error is not correctable by simply amending later in every case.
What 'Use in Commerce' Actually Requires
The standard is narrower than most applicants assume. Use in commerce means bona fide use in the ordinary course of trade, not use made merely to reserve rights. For goods, that generally means the mark appears on the goods, their packaging or point-of-sale displays, and the goods are actually sold or transported in commerce. For services, it means the mark is used in advertising or rendering the services, and the services are actually being provided.
The commerce must be the type Congress can regulate — typically interstate, or between the US and another country. A single token sale arranged to support an application does not satisfy the requirement, and examiners and opponents do scrutinise this.
Section 1(a): Filing on Use
If you are genuinely selling under the mark, a use-based application is the more direct path. You submit a specimen with the application showing the mark as customers actually encounter it, along with the date of first use anywhere and the date of first use in commerce.
The advantage is simplicity and cost: no Statement of Use to file later, no extension fees, and a shorter route to registration once the application clears examination. The requirement is that the claim must be accurate on the day you sign it.
Section 1(b): Filing on Intent to Use
An intent-to-use application lets you file before you begin selling, provided you have a bona fide intention to use the mark in commerce. That intention should be demonstrable — business plans, product development, supplier arrangements — rather than a vague aspiration.
The value is priority. Your filing date establishes constructive use as of that date, meaning a competitor who begins using a similar mark afterwards generally cannot claim superior rights. For a brand in development, that protection during the vulnerable pre-launch period is often worth the additional steps.
The cost is those additional steps. The application will not register until you file a Statement of Use, and that carries its own fee and its own deadline structure.
The Statement of Use Timeline
If an intent-to-use application clears examination and publication, the USPTO issues a Notice of Allowance rather than a registration. From that point a clock starts.
- You have six months from the Notice of Allowance to file a Statement of Use, currently $150 per class
- If you are not yet in commerce, you may request a six-month extension for $125 per class
- Up to five extensions are available, giving a maximum of thirty-six months from the Notice of Allowance
- Each extension request must state your continued bona fide intention and, after the first, show ongoing efforts toward use
- Miss the window entirely and the application is abandoned, with fees paid already spent
Specimens: The Most Common Stumbling Block
Whichever basis you use, the specimen is where applications frequently falter. A specimen must show the mark as it is genuinely used in the marketplace, not as you would like it to appear.
For goods, acceptable specimens typically include photographs of the mark on the product or its packaging, labels and tags, or point-of-sale displays. Digitally created mock-ups, artwork files and images of the logo alone are commonly refused. For services, advertising materials, website screenshots showing the services being offered, and brochures are usually acceptable, provided there is a clear association between the mark and the services.
Website screenshots for goods need care: a page showing the product with the mark, a price and a means of ordering may qualify, while a page that merely displays the logo generally will not.
Which Basis Fits Your Situation
File on use if you are already selling under the mark across state lines and can produce a proper specimen today. It is faster and cheaper.
File on intent to use if you are pre-launch, still finalising the product, testing a name before committing to inventory, or expanding into a new class you do not yet serve. Securing the priority date is the entire point, and it is frequently the difference between owning a name and losing it to a faster competitor.
If you are uncertain whether your current activity qualifies as use in commerce, that uncertainty itself is a reason to seek guidance before signing. The declaration you make on the trademark application is made under penalty of perjury.
