Key TakeawaysA Section 1(b) “intent-to-use” application lets you claim a trademark before you launch, as long as you have a genuine plan to use it. You file now, and prove use later. ● Your filing date gives you nationwide priority over anyone who starts using a similar mark after you file, once your mark registers. ● The USPTO examines and publishes your mark first. After it issues a Notice of Allowance, you have six months to file a Statement of Use, extendable up to 36 months in total. ● Current USPTO fees: $350 per class to file, $150 per class for the Statement of Use, and $125 per class for each six-month extension. ● You must have a real, documented intention to use the mark. An application filed just to reserve a name can be challenged. |
You’ve picked a name for your new product or business, but you’re not ready to launch yet. The problem: if you wait until launch to file a trademark application, someone else could file first.
That’s what an intent-to-use application is for. Under Section 1(b) of the Lanham Act, you can apply to register a trademark based on your bona fide intention to use it, and lock in your priority date before you sell a single product. Here’s how the process works, what it costs, and the deadlines to watch.
1(a) vs. 1(b): Choosing Your Filing Basis
Every U.S. trademark application needs a filing basis. For most U.S. businesses, it’s one of these two:
| Section 1(a): Use in commerce | Section 1(b): Intent to use | |
|---|---|---|
| When to use it | You’re already selling under the mark | You plan to use the mark but haven’t yet |
| Proof of use | With the application | Later, after approval |
| Extra filings | None | Statement of Use, plus any extensions |
| Extra USPTO fees | None | $150 per class for the Statement of Use, $125 per class per extension |
| Priority | Filing date (and your earlier use) | Filing date, once the mark registers |
You can also mix them in one application. If you already sell clothing under your brand but plan to launch bags next year, you can file clothing under 1(a) and bags under 1(b). Our guide to the 1(a) filing basis covers use-based applications in detail.
Why File an Intent-to-Use Application?
The biggest advantage is priority. Once your mark registers, your filing date is treated as your date of first use nationwide, which the law calls “constructive use.” That means someone who starts using a similar mark after your filing date generally can’t claim earlier rights, even if they launch before you do.
An intent-to-use application is especially useful if you’re:
- Launching a new business, product line, or app
- Raising money and want to show investors the brand is protected
- Spending on branding, packaging, or a website before launch
- Expanding an existing brand into new products
What Counts as a “Bona Fide Intent”?
You must have a real, good-faith intention to use the mark in commerce for the goods or services you list. A vague idea isn’t enough, and filing just to reserve a name or block a competitor can get your application or registration challenged.
Keep records that show your plans, such as business plans, product designs, supplier quotes, website mockups, or marketing budgets. If someone opposes your application, the absence of any documents showing intent can sink it. List only the goods and services you actually plan to offer.
The Intent-to-Use Process, Step by Step
1. Search before you file
Search for conflicting marks first. Our guide on how to check if something is trademarked covers the free USPTO search, and a full trademark search catches state registrations and unregistered users too.
2. File the application
File through the USPTO’s Trademark Center, selecting Section 1(b) as the filing basis for each class. The base fee is $350 per class. Extra surcharges apply if your description of goods or services isn’t taken from the USPTO’s pre-approved list or is unusually long.
3. Examination
An examining attorney reviews your application several months after filing. The review is the same as for any other application: they check for conflicting marks, descriptiveness, and problems with your description of goods. If there’s an issue, you’ll receive an office action and generally have three months to respond, with a three-month extension available for a fee.
4. Publication for opposition
If approved, your mark is published in the USPTO’s Official Gazette. Anyone who believes they’d be harmed has 30 days to oppose it or request more time. You don’t need to be using the mark yet at this stage. See what “approved for publication” means.
5. Notice of Allowance
If no one opposes, or an opposition fails, the USPTO issues a Notice of Allowance about eight weeks after publication. The Notice of Allowance doesn’t mean you’re registered. It starts the clock for proving use.
6. Use the mark and file a Statement of Use
Within six months of the Notice of Allowance, you must start using the mark in commerce and file a Statement of Use with a specimen showing the mark on your goods or in advertising for your services. The fee is $150 per class.
7. Registration
Once the Statement of Use is accepted, your mark registers. Your registration then needs maintenance filings between the fifth and sixth year, and every ten years after that.
| Quick Insight! If you start using the mark before the USPTO approves it for publication, you can file an Amendment to Allege Use during examination instead of waiting for the Notice of Allowance. That can shorten the overall timeline. |
What If You Need More Time?
If you’re not using the mark within six months of the Notice of Allowance, you can request a six-month extension. You can request up to five extensions, giving you a maximum of 36 months from the Notice of Allowance to file your Statement of Use.
Each extension costs $125 per class. So an application covering three classes would pay $375 for each extension. After the first extension, you must also explain your ongoing efforts to use the mark, such as product development, manufacturing, or marketing.
Missing a deadline means your application is abandoned. You’d have to file again and would lose your original priority date, so diary every deadline.
Common Intent-to-Use Mistakes
- Listing goods you have no real plan to sell. This weakens your bona fide intent and invites challenges.
- Using the mark only in a “token” way. A single sale to a friend or a page that says “coming soon” usually isn’t enough. Use must be real and in the ordinary course of trade.
- Filing a specimen that doesn’t match. The mark on your specimen must match the mark in your application.
- Letting deadlines slip. The Statement of Use and extension deadlines are strict.
- Waiting to file. Every day between choosing a name and filing is a day someone else could file first.
Frequently Asked Questions
What is a 1(b) intent-to-use trademark application?
It’s a trademark application based on your bona fide intention to use the mark in the future, rather than current use. It lets you secure a priority date before you launch, and you prove use later by filing a Statement of Use.
What is the difference between a 1(a) and 1(b) filing basis?
A 1(a) application is for a mark you’re already using in commerce, and you submit proof of use with the application. A 1(b) application is for a mark you intend to use, and you submit proof of use after the USPTO approves the mark.
How long do I have to use my trademark after a Notice of Allowance?
You have six months from the Notice of Allowance to file a Statement of Use. You can request up to five six-month extensions, for a maximum of 36 months, at $125 per class for each extension.
How much does an intent-to-use application cost?
USPTO fees are $350 per class to file, $150 per class for the Statement of Use, and $125 per class for each extension. Surcharges apply if you don’t use the USPTO’s pre-approved descriptions of goods and services.
Does an intent-to-use application give me rights before I start using the mark?
Once your mark registers, your filing date counts as nationwide constructive use, giving you priority over anyone who started using a similar mark after you filed. You can’t enforce the mark against others until it registers.
Ready to Protect Your Brand Before Launch?
Drishti Law handles intent-to-use applications from search to registration, and keeps track of every Statement of Use and extension deadline for you. Call 773-234-1139 or book a free consultation.
Sahil Malhotra
Sahil Malhotra is an Intellectual Property Attorney, who founded Drishti (“vision”) law because of his vision in protecting dreams and ideas.
He provided individuals and small businesses with an opportunity to enhance their IP’s value by helping them register trademarks and successfully argue against office actions. In addition to his training and experience, he has been deeply involved in the multifaceted IP portfolio at UIC and continues to be associated with IP organizations and conferences.
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