Use-in-Commerce vs. Intent-to-Use: Which Trademark Basis is Right for Your Application?

When you’re ready to protect your brand through a trademark, the U.S. Patent and Trademark Office (USPTO) gives you two options when filling out your trademark application: use-in-commerce or intent-to-use bases. Each serves a different purpose, depending on whether your trademark is already being used in the marketplace or if you’re planning to use it in the near future. Understanding the differences can help you decide which route is best for your business.

What is the Use-in-Commerce Basis?
A use-in-commerce trademark basis is for businesses already using their trademark in connection with their goods or services. To qualify, you must demonstrate that your trademark is actively being used in commerce - meaning you’re selling products or providing services across state lines or internationally and the mark is clearly associated with your goods or services.

Key Features of Use-in-Commerce Basis in Applications:
- Proof of Use: You’ll need to submit one or more "specimens" showing how your trademark is being used, such as product labels, packaging, or screenshots of your website displaying the mark.
- Immediate Registration: If your application is approved, your trademark can proceed to registration without additional steps.
- Best for Established Businesses: This application is ideal for businesses with active operations and sales.

For example, if you run a coffee shop and have been selling your "Morning Bliss" coffee brand nationwide, you’d file your application on a use-in-commerce basis, with evidence of sales and branding.

What is the Intent-to-Use Basis?
An intent-to-use trademark basis is for businesses that have not yet started using their trademark but plan to do so soon. This option allows you to reserve your trademark while preparing to launch your products or services.

Key Features of Intent-to-Use Basis in Applications:
- No Proof of Use Required Initially: You don’t need to show the trademark in use when you apply.
- Additional Steps Required: Before your trademark is registered, you’ll need to file a "Statement of Use" or request an extension if you’re not ready yet.
- Best for Startups and Future Ventures: This application is ideal for businesses in the planning stages or testing the market.

For instance, if you’re developing a new app called "Task Titan" and want to secure the trademark before launching it, you’d file your application on an intent-to-use basis.

Key Differences Between the Two:

Proof of Use

• Use-in-Commerce: Proof of use is required at the time of application.

• Intent-to-Use: Proof of use is not required initially.

Timing

• Use-in-Commerce: Designed for trademarks that are already being used in the marketplace.

• Intent-to-Use: Best when the mark is planned for future use but is not yet in active commerce.

Additional Steps

• Use-in-Commerce: No additional steps beyond the initial application.

• Intent-to-Use: Requires filing a Statement of Use before the registration can be completed.

Best For

• Use-in-Commerce: Established businesses with products or services already in the market.

• Intent-to-Use: Startups, new ventures, or businesses developing future projects.

Which Option Should You Choose?
The choice depends on where you are in your business journey:
- Go for use-in-commerce basis if your trademark is already being used to sell products or services. It’s a quicker path to registration.
- Choose intent-to-use basis if you want to secure your trademark while finalizing your product or service launch.

Final Thoughts
Both use-in-commerce and intent-to-use bases are valuable tools for protecting your brand. The key is understanding which fits your current business stage and goals. If you’re unsure, consulting a trademark attorney can help you navigate the process and ensure your application aligns with your needs.