Intent to Use trademark applications play a central role in modern trademark prosecution and TTAB litigation. They allow brand owners to secure priority before actual use in commerce, which can be critical in fast moving markets. At the same time, Intent to Use filings often become focal points in oppositions and cancellations, particularly when the opposing party challenges whether the applicant truly had a bona fide intent to use the mark. Understanding how the Trademark Trial and Appeal Board evaluates Intent to Use applications as evidence is essential for applicants, opposers, and cancellation petitioners alike. The TBMP provides procedural guidance that shapes how intent evidence is presented, challenged, and weighed by the Board.

What an Intent to Use Application Represents

An Intent to Use application is not merely a placeholder. By filing under Section 1(b) of the Lanham Act, the applicant makes a verified statement that it has a bona fide intention to use the mark in commerce on or in connection with the identified goods or services. This declaration carries legal significance. In TTAB proceedings, the filing itself can establish constructive priority as of the application filing date, provided the application ultimately matures into a registration. This means that even without use at the time of filing, an Intent to Use application can affect the outcome of a likelihood of confusion analysis.

However, the declaration of intent is not immune from scrutiny. The Board treats it as a factual assertion that can be tested through discovery and evidence. When challenged, the applicant must be prepared to demonstrate that its intent was real, concrete, and objectively reasonable at the time of filing.

Bona Fide Intent and the TBMP Framework

The TBMP makes clear that a bona fide intent to use is more than a subjective hope or vague aspiration. The Board looks for objective evidence that supports the applicant’s claimed intent. This may include business plans, product development documents, marketing discussions, licensing negotiations, or other contemporaneous materials that show steps taken toward use of the mark.

In TTAB proceedings, a lack of documentary evidence can be fatal. The Board has repeatedly held that an applicant’s testimony alone, without supporting documentation, may be insufficient to establish bona fide intent when intent is challenged. The TBMP guides parties through the procedural mechanisms for raising and proving such challenges, typically through discovery requests aimed at uncovering the applicant’s pre filing activities.

Challenging Intent to Use in Oppositions and Cancellations

Opposers frequently assert lack of bona fide intent as an independent ground for opposition. This ground focuses not on confusion or descriptiveness, but on whether the application was improperly filed in the first place. If successful, the application can be refused without reaching other substantive issues.

The evidentiary burden initially lies with the opposer to produce evidence that reasonably calls the applicant’s intent into question. Once that threshold is met, the burden shifts to the applicant to come forward with evidence demonstrating bona fide intent. The TBMP emphasizes the importance of this burden shifting framework, which often determines the outcome of intent based claims.

In cancellation proceedings, intent issues may arise when a registration originated from an Intent to Use application. Although use will have occurred by the time of registration, evidence of lack of bona fide intent at the time of filing can still support a cancellation claim if properly pleaded and proven.

Discovery and Evidence of Intent

Discovery is the primary battleground for Intent to Use disputes. Parties routinely seek documents related to product development, internal communications, and third party negotiations. The TBMP encourages proportional discovery, but it also recognizes that intent is inherently document driven.

Applicants should be mindful that failure to produce responsive documents can be used against them. In some cases, an absence of documentation has led the Board to infer that no bona fide intent existed. Conversely, well organized records that show a logical progression toward use can strongly support the applicant’s position.

Testimony declarations submitted during trial must align with documentary evidence. Inconsistencies between testimony and produced documents can undermine credibility and weaken the evidentiary value of the intent claim.

Intent to Use Filings and Likelihood of Confusion Analysis

Beyond intent challenges, Intent to Use applications also function as evidence in likelihood of confusion cases. Even without use, the application can establish priority and define the scope of the applicant’s claimed goods or services. The Board compares the identification as written, not hypothetical future use scenarios.

The TBMP instructs that the absence of use does not diminish the legal effect of the application for priority purposes. This means that an Intent to Use applicant can successfully oppose a later filed application if confusion is likely, assuming all procedural requirements are met.

However, the lack of marketplace evidence can affect the analysis of certain factors, such as actual confusion or conditions of sale. Practitioners must carefully frame arguments to account for these evidentiary limitations.

Strategic Considerations for Brand Owners

For brand owners, Intent to Use filings offer powerful advantages, but they also demand discipline. Filing too early, without concrete planning, increases vulnerability in TTAB proceedings. Filing too late risks losing priority to competitors.

The TBMP framework rewards applicants who treat Intent to Use applications as part of a broader brand strategy rather than a speculative reservation. Maintaining documentation, aligning internal planning with filed identifications, and understanding how intent evidence will be evaluated can make the difference between a defensible application and a costly loss.

From an enforcement perspective, challengers should assess whether an Intent to Use application shows signs of weakness before asserting a lack of bona fide intent claim. When supported by evidence, this ground can be decisive and efficient.

Conclusion

Intent to Use trademark applications occupy a unique evidentiary position in TTAB proceedings. They can establish priority and support enforcement efforts, yet they are also subject to rigorous examination under the TBMP when intent is questioned. The Board’s focus on objective evidence underscores a broader principle of trademark law: rights are grounded in real commercial plans, not abstract ideas.

Your brand is everything. Treating Intent to Use filings with the seriousness they deserve helps protect those rights from the earliest stages. When intent becomes an issue before the TTAB, experienced guidance can simplify the process and strengthen your position. Consider consulting with a trademark attorney who understands how to align strategy, evidence, and procedure under the TBMP.