An intent-to-use application lets you apply to register a trademark before you start using it, as long as you have a bona fide intention to use the mark in commerce. It is filed under Section 1(b) of the Lanham Act, 15 U.S.C. § 1051(b). The mark does not register until you prove actual use, usually by filing a statement of use after the USPTO issues a notice of allowance.

This guide covers how the intent-to-use process works, statement of use deadlines, extensions, and current fees, the difference between an amendment to allege use and a statement of use, and the seven factors we use to evaluate whether an applicant’s intent will hold up if challenged.

What Is an Intent-to-Use Trademark Application?

U.S. applicants typically choose between two filing bases. A use-based application under Section 1(a) claims that the mark is already in use in commerce and includes a specimen showing that use. An intent-to-use application under Section 1(b) is available to a person who has a bona fide intention, “under circumstances showing the good faith of such person,” to use a trademark in commerce, as stated in 15 U.S.C. § 1051(b)(1).

Intent-to-use filings are common for product launches, rebrands, and new lines of business where a name needs to be secured before the goods ship or the services begin. You do not have to register a mark before using it, but filing early can protect launch plans. See Do I Have to Register My Trademark Before Using It?

Benefits of Filing an Intent-to-Use Application

• Nationwide constructive use priority. Once the mark registers on the Principal Register, the filing date counts as constructive use conferring nationwide priority, subject to the rights of prior users and earlier filers. 15 U.S.C. § 1057(c).
• Feedback before you invest. The USPTO examines the application before you print packaging or build a campaign, so a refusal can lead to a lower-cost rebrand instead of a disruptive change after launch.
• Public notice of your claim. Pending applications appear in the USPTO’s database, which gives notice to others searching for similar marks.

Relying on actual use alone for priority has its own pitfalls, which we discuss in Trademark Priority: Use in Commerce Risks.

How the Intent-to-Use Process Works

1. File the application. Identify the mark, the goods or services, and the classes, and verify your bona fide intention to use the mark. The base USPTO fee is $350 per class.
2. Examination. An examining attorney reviews the application and may issue an Office action. Most applicants have three months to respond, with a three-month extension available for $125. 37 C.F.R. § 2.62.
3. Optional amendment to allege use. If you begin using the mark before the examining attorney approves it for publication, you can file an amendment to allege use.
4. Publication. Once approved, the mark is published so third parties can oppose it.
5. Notice of allowance. If no opposition succeeds, the USPTO issues a notice of allowance, which starts the statement of use clock.
6. Statement of use and registration. After you file an acceptable statement of use with a specimen, the mark proceeds to registration.

Statement of Use Deadlines and Extensions

Under 15 U.S.C. § 1051(d) and 37 C.F.R. § 2.89, the statement of use is due within six months after the notice of allowance issues. If you are not ready, you can request more time:

• First extension: one six-month extension, requested before the original deadline, with the fee and a verified statement that you still have a bona fide intention to use the mark.
• Later extensions: up to four more six-month extensions, each requested before the current period expires and each requiring a showing of good cause.
• Good cause: a description of ongoing efforts to use the mark, such as product or service research and development, market research, manufacturing, promotional activities, steps to acquire distributors, or steps to obtain government approval.
• Outer limit: no more than 36 months total from the notice of allowance.

The current USPTO fee schedule sets the statement of use fee at $150 per class and each extension request at $125 per class. Section 2.89(e) also allows one more extension request with or after a statement of use if time remains in the current period. Under 15 U.S.C. § 1051(d)(4), failing to timely file a statement of use or extension request results in abandonment of the application unless the applicant shows the USPTO Director that the delay was unintentional.

For a walkthrough of the filing itself, see our full guide to filing a trademark statement of use and our explanation of acceptable trademark specimens of use.

Amendment to Allege Use vs. Statement of Use

An amendment to allege use and a statement of use do the same basic job: each alleges that the mark is in use and includes a specimen. The difference is timing. Under 37 C.F.R. § 2.76, an amendment to allege use can be filed between the filing of the application and the date the examining attorney approves the mark for publication. After that approval, an allegation of use can be submitted only as a statement of use after the notice of allowance issues, which creates a gap often called the blackout period. Both filings cost $150 per class. Our article on the USPTO declaration vs. statement of use explains how the verified declaration fits into these filings.

What Counts as Bona Fide Intent?

The key appellate decision is M.Z. Berger & Co. v. Swatch AG, No. 2014-1219 (Fed. Cir. June 4, 2015). Berger filed an intent-to-use application for IWATCH covering about 30 goods related to watches and clocks. Swatch opposed, and the Trademark Trial and Appeal Board found that Berger lacked a bona fide intent to use the mark. The Federal Circuit affirmed, holding that bona fide intent “requires objective evidence of intent.” Although the evidentiary bar is not high, the circumstances must show that the applicant’s intent was firm and not merely an intent to reserve a right in the mark. The inquiry is objective and based on the totality of the circumstances.

The record shows what weighs against an applicant. Berger’s documentary evidence related only to prosecution of the trademark application, so the Board viewed it as created to advance the filing rather than a real product plan, and testimony from Berger’s own witnesses was inconsistent.

The Sixth Circuit applied similar reasoning in Kelly Services, Inc. v. Creative Harbor, LLC, No. 16-1200 (6th Cir. 2017). The court found that the applicant had a firm intent to use its WORKWIRE mark for some of the listed goods and services, but not for others that were meant only for future exploration.

The 7 Factors We Use to Evaluate Bona Fide Intent

Tribunals decide bona fide intent case by case, without a fixed checklist. Drawing on these decisions and on the ongoing efforts listed in 37 C.F.R. § 2.89(d), we ask clients seven practical questions before filing:

1. Is there any statement suggesting you only want to reserve the name? Emails or testimony describing the filing as a way to hold a mark in case the business grows can undercut intent.
2. Do products, prototypes, or service plans exist? Documented work on the actual offering is strong objective evidence.
3. Is the offering feasible? If nothing exists yet, be ready to show that the goods or services can realistically be produced and brought to market.
4. Do you have experience with this type of product or service? An applicant moving into an unfamiliar category should expect closer questions about its plans.
5. Have you identified customers or a market? Market research, customer outreach, and distributor discussions show a real commercial plan.
6. Have firm decisions been made? Intent should be firm for each listed item, not a list of possibilities to explore later.
7. What have you done since filing? Continued development, manufacturing, promotion, and regulatory steps support intent, and they are the same efforts you will describe when requesting extensions.

The practical lesson is to create and keep dated business records as the work happens. Documents generated only for the trademark filing carry little weight.

Risks of Intent-to-Use Applications

• Opposition or cancellation for lack of bona fide intent. As M.Z. Berger shows, a competitor can challenge an application on this ground.
• Overbroad identifications. Listing goods and services you have no firm plan to offer invites a challenge and adds cost.
• Deadline risk. Constructive use priority depends on eventual registration, so a missed statement of use or extension deadline can cost you the filing date.
• Limits on assignment. Under 15 U.S.C. § 1060(a)(1), an intent-to-use application generally cannot be assigned before an amendment to allege use or statement of use is filed, except to a successor to the applicant’s ongoing and existing business to which the mark pertains.
• Per-class costs. Statement of use and extension fees are charged per class, so a multi-class application that needs several extensions can become expensive.

Frequently Asked Questions

What is an intent to use trademark application?

It is a federal trademark application filed under Section 1(b) of the Lanham Act before the mark is in use. The applicant must have a bona fide intention, under circumstances showing good faith, to use the mark in commerce. The mark registers only after the applicant files an acceptable amendment to allege use or statement of use showing actual use.

How long do I have to file a statement of use?

The statement of use is due six months after the USPTO issues the notice of allowance. You can request a first six-month extension and up to four more six-month extensions, each requiring a showing of good cause. The total cannot exceed 36 months from the notice of allowance, and each request must be filed before the current deadline.

How much does a statement of use cost?

Under the current USPTO fee schedule, a statement of use costs $150 per class, the same as an amendment to allege use. Each request for an extension of time to file a statement of use costs $125 per class. These fees are in addition to the $350 per class base application fee paid at filing, and attorney fees are separate.

What evidence shows a bona fide intent to use a trademark?

Tribunals look for objective evidence based on the totality of the circumstances. Helpful evidence includes business plans, prototypes, market research, manufacturer or supplier communications, distributor outreach, and promotional planning created in the ordinary course of business. In M.Z. Berger v. Swatch, documents related only to the trademark filing and inconsistent testimony were not enough.

Can I sell or assign an intent-to-use application?

Generally not before use is alleged. Under 15 U.S.C. § 1060(a)(1), an intent-to-use application cannot be assigned before an amendment to allege use or statement of use is filed, unless the assignment is to a successor to the applicant’s business, or the portion of it to which the mark pertains, and that business is ongoing and existing.

Talk to a Trademark Attorney Before You File

An intent-to-use application can secure nationwide priority for a brand you have not launched yet, but only if your intent is real, documented, and matched to the goods and services you list. Missing a statement of use deadline or overclaiming goods can undo that advantage.

If you are planning a launch or a new product line, the trademark attorneys at Revision Legal can help you choose a filing basis, draft an identification you can support, and track statement of use and extension deadlines. Contact us through the form on this page or call (855) 473-8474. Northern Michigan companies preparing a launch can also work with a Traverse City trademark lawyer.