Yes and no. An applicant for trademark registration must eventually sell some products/services in interstate commerce to obtain a fully registered trademark. However, the application process can begin before the first sale.

There are two types of applications for trademark registration. One type is called an “intent-to-use” application. As the name implies, this type of application is “future-looking” in that the applicant admits that there is no current use of the trademark but that the applicant intends to use the relevant trademark in the near future. Consequently, an intent-to-use application can be filed at any time and does not require a sale of the relevant product/service before approval by the U.S. Trademark Office. However, approval is provisional and contingent.

The Trademark Office will issue a provisional approval of the trademark for registration, and then, the applicant will have about a year to complete the registration process. The amount of time can be extended through the filing of various requests for extension of time. Completing the process involves initiating sales where the trademark is used and then submitting to the Trademark Office specimens of use. If these are sufficient, the application “ripens,” and the Trademark Office will then take the final step and issue a Certificate of Registration.

In further explanation, under U.S. trademark laws, there are a large number of legal requirements for registration of a federal trademark. Two of the most important are that the trademark be used in commerce and be used in interstate commerce. These are separate requirements. The first — use in commerce — is the basic requirement for a trademark. By definition, trademarks are for commercial transactions. For a trademark to be used — or “in-use” — the trademark must be attached to the product or the packaging being sold or used in various ways with the provision of services.

The second requirement — use in interstate commerce — arises from the federal nature of our governmental system. For a federal trademark registration, the sales must cross State borders. Otherwise, a business must file for a trademark registration under State trademark laws.

When an applicant files for a federal trademark registration, the applicant must provide proof of use of the trademark. This is done by providing the Trademark Office with “specimens of use.” This is often done with photos of the product where the trademark is used or of the trademark being used in advertising and signage with respect to services. Without acceptable specimens of use, the Trademark Office will not approve a trademark application. Typically, this is straightforward with a “use-based” application. However, with an intent-to-use application, the rovision of specimens of use must wait until the trademark is being used and sales are occurring in interstate commerce. Note that an intent-to-use application will be deemed abandoned if the required specimens of use are not eventually provided.

Intent-to-Use Applications: Strategy and Pitfalls

The intent-to-use (ITU) application pathway under Section 1(b) of the Lanham Act (15 U.S.C. § 1051(b)) is one of the most strategically valuable tools available to trademark applicants, but it is also one of the most frequently misused. Understanding how to use it correctly — and what mistakes to avoid — can make the difference between securing your trademark before a competitor does and losing rights you thought you had.

The Priority Filing Date Advantage

The most important strategic benefit of an ITU application is that it establishes a priority filing date that will relate back to your actual use of the mark once the application matures to registration. Under U.S. trademark law, priority is generally determined by first use in commerce. But for ITU applicants, the filing date of the ITU application becomes the constructive use date for priority purposes once the registration issues — even if a competitor actually began using a similar mark in commerce between your filing date and your first actual use date.

This is enormously valuable. If you are launching a new product or entering a new market and you have identified a trademark you want to use, filing an ITU application the moment you have a bona fide intention to use the mark locks in your priority against anyone who begins using a similar mark after your filing date. In competitive markets — where multiple companies may be developing similar brands simultaneously — filing early can be decisive.

What “Bona Fide Intention to Use” Actually Requires

An ITU application requires the applicant to certify a “bona fide intention” to use the mark in commerce. This is a legal standard, not merely a subjective state of mind. The USPTO and federal courts have held that a bona fide intention requires some objective basis — typically documentation of business planning, product development activity, marketing preparation, or other concrete steps toward commercial use. Filing an ITU application purely to “reserve” a trademark without any genuine present intent to use it constitutes a void application under 15 U.S.C. § 1051(b), which can result in cancellation of any resulting registration.

Maintaining documentation of your bona fide intent at the time of filing — business plans, investor decks, product development records, correspondence with manufacturers or distributors — is advisable practice in the event your intent is ever challenged.

Acceptable Specimens of Use

When the time comes to convert an ITU application to a use-based application by filing a Statement of Use (or Amendment to Allege Use), the USPTO requires specimens demonstrating actual use of the mark in commerce. The acceptable specimens differ depending on whether the mark is used with goods or services:

• Goods. The specimen must show the mark as it actually appears on the goods, their packaging, or labels attached to the goods. Website screenshots can serve as specimens for goods if they show the mark in connection with the ability to purchase the goods — meaning they must include a means of ordering and purchasing, not merely advertising the product.
• Services. For services, the specimen must show the mark used in the rendering of the services or in advertising the services. This can include website screenshots, brochures, or signage, provided the mark is clearly displayed in connection with the identified services.

The USPTO has become increasingly strict about specimen acceptability. Mockup photos (images of goods with the mark digitally applied rather than physically affixed), promotional material that does not clearly offer the identified goods or services for sale, and specimens that show the mark in a form materially different from the applied-for mark are common bases for refusal. Rejected specimens can delay prosecution, and repeated failures to submit acceptable specimens can result in abandonment of the application.

The Six-Month Extension Request System

After the USPTO approves an ITU application and publishes it for opposition, if no opposition is filed (or if opposition is resolved in the applicant’s favor), the USPTO issues a Notice of Allowance. The applicant then has six months to file a Statement of Use or request a six-month extension of time. Up to five extensions are available (for a total of 36 months from the Notice of Allowance), but each extension requires the applicant to certify continued bona fide intent to use the mark and, after the first extension, to provide a statement of the applicant’s reasons for continued non-use. The fees for extensions have increased under the January 2025 USPTO fee schedule, making timely prosecution cost-efficient.

Whether you are filing your first trademark application or managing a portfolio of ITU applications, experienced counsel makes a meaningful difference in prosecution strategy and outcome. Contact the Trademark attorneys at Revision Legal or visit our trademark practice page.

Contact the Trademark Attorneys at Revision Legal

For more information, contact the experienced Trademark Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.