Use based trademark applications

Many people are under the impression that you must be file a trademark application before you start using the mark. While this is a good idea to protect your trademark rights, this is not a requirement. You can file a federal trademark application essentially whenever you want- including years after your first use of the mark in commerce. The United States Patent and Trademark Office (USPTO) allows applicants to file "use based " (also called use-based, use in commerce, Section 1(a) or § 1(a)) trademark applications.

According to the USPTO, a use based trademark application can be filed if you are:

... actually already using the mark in commerce that the U.S. Congress may regulate (i.e., interstate commerce, territorial commerce, or commerce between the United States and a foreign country) in connection with the goods and/or services identified in the application.

When you file your use based trademark application, you need to submit specimens showing your use mark with your goods and services. The requirements for this specimen varies depending upon your product or services. You can submit specimens at a later date, usually once the USPTO requests specimens to finalize your application.

If you are using your mark in commerce, it is best to file a use based trademark application instead of an intent to use application (ITU). With an ITU application, you will later have to file a Statement of Use, and pay additional filing fees.

To prepare and file a basic trademark application, including consultation with an attorney, our firm charges $400 (plus USPTO filing fee of $325).

To contact us, fill out the form on this page, call us at 858-350-3124 (San Diego) or toll free at 800-361-1961.

For additional trademark information resources, please visit our trademark resources page.