Legal Guide

What Entrepreneurs Should Know About Trademark Applications

One of the smartest things any entrepreneur can do is obtain a federal trademark registration for their branding elements with the USPTO. If you are interested in doing that, you should consider your two options for filing an application.


Actual Use Applications

When you file an Actual Use trademark application, you are seeking a registration for a mark which you are already using in commerce. Pretty simple, right?

With this kind of application, you have to provide two specific things in your application: (1) the date of your first use in commerce; and (2) a specimen of your use in commerce.

A specimen is evidence of your use of the mark in commerce. If you are selling clothing, then it can be the tag of the clothing item. For service providers, it can be a screenshot of your website where you are marketing your services. The USPTO maintains a page that describes specimens pretty well. You can check that out here.

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Intent to Use Applications

When you file an Intent to Use trademark application (sometimes called an ITU or 1(b) application), you are seeking a registration for a mark which you are not using, but which you have a bona fide intent to use in commerce.

Unlike an Actual Use application, you don’t have to include a date of first use or a specimen with this application (because you are not using it yet).

Assuming your application is approved for registration, you’ll then have six months from the date of approval to make an additional filing (and pay an additional filing fee) that includes (1) your date of first use; and (2) a specimen of your use (just like in an Actual Use application). If you don’t use the mark in that six month window, you can request (and pay for) additional six month windows, but you can’t extend it forever.

The benefit of an ITU application is that it essentially holds your place in line. So if someone files a for a confusingly similar mark while your application is pending, you will be able to wrap up your application and possibly prevent them from registering their mark.


Application Fees

To learn more about USPTO trademark application fees, check out this guide.

(This article is general in nature and is not legal advice.)

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