In the world of brand protection, one of the most common questions from business owners, startups, and creators is: “Should I file a use-based or intent-to-use trademark application?” The answer depends on where you are in your business journey and how soon you plan to launch your products or services under a particular brand name. Understanding the legal differences between these two types of applications is essential to choosing the right filing strategy with the United States Patent and Trademark Office (USPTO).
This article will walk you through what U.S. trademark law says about use-based and intent-to-use applications, how each one functions procedurally, and what strategic considerations you should keep in mind before filing.
The Legal Foundation: What Trademark Law Protects
Before diving into the differences between use-based and intent-to-use applications, it helps to understand what trademark law actually protects. In the United States, trademark rights stem primarily from use in commerce—specifically, in interstate commerce, which means offering your goods or services across state lines or internationally. When you begin using a mark (like a business name, logo, or slogan) in connection with your offerings, you automatically start developing what are known as common law trademark rights.
These rights give you limited protection even without a formal registration, but they are geographically restricted. For example, if you’re using your trademark in New York City but haven’t registered it, you may not have enforceable rights in California. That’s why so many businesses opt to register their marks with the USPTO—to expand protection nationwide and add legal weight to their ownership claim.
What Is a Use-Based Trademark Application?
A use-based application—sometimes referred to as a “Section 1(a)” application—requires that you are already using the trademark in commerce at the time of filing. This means you must have actual sales or commercial offerings under the mark, and you must provide the USPTO with proof of that use.
Examples of acceptable proof can include a screenshot of your website showing the product being sold, a photograph of the product with the label attached, or a copy of an advertisement that features the brand and directs consumers on how to buy. The kind of evidence you’ll need varies depending on whether your mark is being used for goods or services, and the USPTO has strict formatting rules about what counts.
From a procedural standpoint, if you meet this requirement, a use-based application offers a more streamlined path to registration, because the USPTO can proceed to examine your application and, if there are no issues, move directly to registration after publication.
Advantages of Use-Based Filings
One of the biggest advantages of filing on a use basis is that it tends to be faster and more cost-effective than an intent-to-use filing. Since you’ve already submitted evidence of use with your application, you won’t need to go through the extra steps involved in proving your intentions down the line.
Additionally, filing as a use-based applicant reflects a higher level of market readiness. You’re not just planning to launch your product—you’ve already entered the market and taken steps to build your brand presence.
However, there’s a significant caveat: if you haven’t already started using the mark in commerce, you can’t file on a use basis. Trying to do so with premature or fabricated use could result in the application being rejected—or worse, a fraud claim if false information is submitted knowingly.
What Is an Intent-to-Use Trademark Application?
An intent-to-use (ITU) trademark application—known as a “Section 1(b)” filing—is designed for those who haven’t yet started using their trademark in commerce, but have a bona fide intention to do so in the near future. This is a legally binding declaration, and the USPTO takes it seriously.
By filing under Section 1(b), you’re reserving your place in line and establishing priority rights based on the application’s filing date—even though you haven’t officially launched your brand yet. This can be a powerful advantage in competitive industries where brand names are claimed quickly.
Once the USPTO reviews and preliminarily approves your ITU application, it does not immediately proceed to registration. Instead, you receive a Notice of Allowance (NOA)—a formal notification that your mark has passed examination and is approved, pending actual use.
At that point, you have a limited period to show the USPTO that you’ve started using the mark. This is done by submitting a Statement of Use (SOU), along with evidence of commercial use. The initial deadline is six months from the date of the NOA, but you can file up to five six-month extensions for a maximum of three years to get your brand off the ground and submit the required proof.
Benefits of Intent-to-Use Applications
An ITU filing offers brand owners a valuable head start. You don’t need to wait until your product is on shelves or your website goes live to secure a place in the trademark registration pipeline. This approach is especially helpful for businesses that need time to finish development, secure funding, or finalize marketing strategies.
It also allows for flexibility in brand development. You can claim rights to multiple goods and services as long as your stated intent is genuine for each one. Later, if your plans change, you can amend or narrow the scope of your application before finalizing it.
However, the extra time and flexibility come at a cost—literally. Each Statement of Use and each extension request carries a separate government fee. Over time, these can add up, making the ITU process more expensive and slower than a straightforward use-based filing.
Step-by-Step: How the Two Application Types Differ Procedurally
To better understand how use-based and intent-to-use applications diverge, let’s walk through their timelines from filing to registration.
Use-Based Application:
- You file your trademark application with proof of use.
- The USPTO examines the application and checks for conflicts or rule violations.
- If approved, your mark is published in the Official Gazette for a 30-day opposition period.
- If no one opposes, the USPTO proceeds directly to registration.
Intent-to-Use Application:
- You file your application stating your bona fide intent to use the mark.
- The USPTO examines the application for compliance and conflicts.
- If approved, the mark is published for a 30-day opposition period.
- If no one opposes, the USPTO issues a Notice of Allowance.
- You then have six months (plus extensions if needed) to provide evidence of use.
- After submitting your Statement of Use, and if approved, the USPTO registers the mark.
As you can see, the ITU process includes additional steps and timelines, making it more of a two-phase application process, compared to the single-phase nature of use-based filings.
Strategic Considerations: Which Application Is Right for You?
Deciding whether to file as a use-based or intent-to-use applicant is not just about timing—it’s about strategy. The path you choose should align with your business model, your launch schedule, and your risk tolerance.
If your product is already in the market and generating revenue, a use-based application is often the most efficient option. You can expedite your registration and avoid the extra paperwork and fees associated with ITU filings.
On the other hand, if your brand is still in development—or if you want to secure trademark protection before publicly revealing your name—an ITU application gives you a vital early advantage. It enables you to stake a claimbefore your competitors can beat you to it, all while buying time to build and launch your offering.
Just be sure that your intent to use is genuine. Filing an ITU application as a placeholder without a clear plan to use the mark can backfire, especially if challenged by other parties or scrutinized by the USPTO.
The Role of Trademark Attorneys in Making the Right Choice
While it’s possible to file either application on your own through the USPTO’s online portal, many applicants benefit from working with an experienced trademark attorney. A legal professional can help you evaluate whether your current use qualifies for a use-based filing, or if an ITU strategy makes more sense. Attorneys can also help anticipate challenges during the examination process, respond to office actions, and structure your filing to avoid unnecessary delays or rejections.
In complex cases—such as those involving multiple product categories, international expansion, or potential conflicts with existing marks—a lawyer’s insight can save you both time and money in the long run.
Final Thoughts: Both Options Serve Different Needs
Use-based and intent-to-use trademark applications are both powerful tools in the brand protection arsenal. The key is knowing when to use each one based on your business’s current and future plans. If you’re already selling products under your brand, a use-based application provides a quick and efficient way to lock in your rights. But if you’re still preparing for launch, the ITU route lets you plant your flag before entering the market.
Trademark law gives you flexibility—so long as you understand the rules and timelines involved. Choosing the right type of application can have a lasting impact on how quickly and securely your brand grows. Whether you’re a seasoned entrepreneur or launching your very first venture, knowing your options is the first step toward long-term brand success.