Intent-to-Use Trademark Application: How to Lock In a Name Before You Launch

The Problem Intent-to-Use Solves

Trademark rights in the United States traditionally come from use — you protect a name by actually selling goods or services under it. That creates an obvious problem for anyone building something new: you pick a name in January, spend eight months on product development, branding, and packaging, and launch in September. If someone else starts using the same name in March, they used it in commerce first.

Congress fixed this in 1989 with the Trademark Law Revision Act, which created the Section 1(b) intent-to-use application. It lets you file with the USPTO before your first sale, based on a genuine intention to use the mark. Your filing date — not your eventual launch date — becomes your constructive use date, giving you nationwide priority over anyone who adopts a similar mark after you file.

Use-Based vs. Intent-to-Use: The Two Filing Bases

Every U.S. trademark application is filed under one of two main bases:

• Section 1(a) — use in commerce. You're already selling goods or services under the mark. You submit a specimen (proof of use) with the application and, if approved, the mark proceeds directly to registration.
• Section 1(b) — intent to use. You haven't started selling yet but have a bona fide intention to do so. The application goes through the same examination, but registration is held until you prove actual use.

The examination process — the attorney review, the likelihood-of-confusion analysis, the publication for opposition — is identical for both. The difference comes at the end: a 1(b) application receives a Notice of Allowance instead of a registration certificate, and the clock starts on proving use.

What 'Bona Fide Intent' Actually Requires

You cannot use intent-to-use filings to warehouse names. The statute requires a bona fide intention to use the mark in commerce — a real, demonstrable business plan, not a hope or a hedge. If your application is ever challenged (in an opposition or cancellation proceeding), you may need to produce evidence that the intent existed at filing:

• Business plans or pitch decks referencing the brand name
• Product development documents, prototypes, or packaging mockups
• Correspondence with manufacturers, designers, or distributors
• Marketing plans, domain registrations, or label designs

The TTAB has invalidated applications where the applicant had no documentary evidence of intent at all. Filing for ten different names for the same product 'to see which one works' is a classic pattern that fails this test for the names you never planned to use.

The Intent-to-Use Timeline, Step by Step

1. File the application

Same form, same fees as a use-based application: $250 per class (TEAS Plus) or $350 per class (TEAS Standard). You check 'intent to use' as your filing basis and skip the specimen.

2. Examination (3–6 months to first action)

A USPTO examining attorney reviews the application exactly as they would a use-based filing — checking for conflicts with existing registrations, descriptiveness problems, and formal defects. Office Actions are answered the same way.

3. Publication for opposition (30 days)

If the examiner approves the mark, it publishes in the Official Gazette. Anyone who believes they'd be damaged by the registration has 30 days to oppose.

4. Notice of Allowance

If no opposition is filed (or you win), the USPTO issues a Notice of Allowance — confirmation that your mark is registrable and is now waiting on proof of use. This is the document that starts the deadline clock.

5. Statement of Use — 6 months, extendable to 36

You have 6 months from the Notice of Allowance to file a Statement of Use: a declaration that the mark is now in use in commerce, plus a specimen showing it (product packaging, a screenshot of your e-commerce listing, marketing material for services). The fee is $100 per class.

Not ready? You can file a 6-month extension request — up to five times, for a maximum of 36 months from the Notice of Allowance. Each extension costs $125 per class. The first extension is granted automatically; later extensions require a statement of your ongoing efforts (product development, regulatory approval, manufacturing setup).

6. Registration

Once the Statement of Use is accepted, the registration certificate issues — and your rights relate back to the original filing date.

What Intent-to-Use Costs in Total

• Filing: $250–$350 per class
• Statement of Use: $100 per class
• Extensions (if needed): $125 per class, per 6-month extension
• Attorney fees: typically $1,000–$2,000 for a straightforward application including the Statement of Use phase

A startup that files in one class and needs one extension pays $475–$575 in USPTO fees — modest insurance for locking in a national priority date 12–18 months before launch.

When to Use Intent-to-Use (and When Not To)

File 1(b) when: you've settled on a brand name but are months from launch; you're raising money and need the name secured before announcing; you're expanding into new product categories where you don't yet sell.

File 1(a) instead when: you're already in business under the mark — there's no reason to add the Statement of Use step and its fees. If you're days away from your first sale, it's often worth waiting briefly and filing use-based.

One more strategic note: an intent-to-use application cannot be assigned (sold or transferred) before the Statement of Use is filed, except to a successor of the underlying business. This anti-trafficking rule exists precisely to stop people from filing for names and selling them.