No, you don’t need to be selling a product before you file for a trademark. The United States Patent and Trademark Office (USPTO) allows you to apply for a trademark based on either current use in commerce or intent to use. However, the specific filing basis you choose will determine what steps you need to take during the application process and when your trademark can be registered.
Let’s explore how trademarks work in relation to selling a product, what “use in commerce” means, and what happens if you’re not yet selling your product or service.
Two Types of Trademark Applications
When filing a trademark application, you’ll need to declare whether your mark is:
1. In Use in Commerce
This means you’re already using your trademark to sell goods or services in interstate commerce (across state lines or internationally). For example:
• You’ve been selling t-shirts online under the brand name “EcoThreads.”
• Your coffee shop, “Java Bliss,” is open and serving customers.
To file based on current use, you must provide a specimen showing how the mark is used in connection with your goods or services. Examples of acceptable specimens include:
• A product label with the trademark.
• A screenshot of your e-commerce site showing the trademark and products available for purchase.
2. Intent to Use (ITU)
If you haven’t started selling your product or service but plan to do so in the near future, you can file based on an intent to use. This lets you reserve rights to the trademark while preparing to launch your business. For example:
• You’re developing a line of skincare products called “GlowPure,” but they aren’t available for sale yet.
• You’re planning to open a restaurant under the name “Savory Bites” but haven’t begun operations.
With an ITU application, you’ll need to file a Statement of Use and provide proof of use in commerce before the USPTO will finalize your registration. You have up to three years from the date your application is approved to submit this proof (with extensions available for a fee).
What is “Use in Commerce”?
“Use in commerce” is a legal requirement for trademark registration. It means you’re actively using your trademark in connection with the sale of goods or services, and that use has a meaningful impact on interstate commerce. Here’s what that means in practice:
• Goods: Your product must be available for sale, and the trademark must appear on the product itself, its packaging, or its label.
• Services: Your service must be actively offered to customers, and the trademark must appear in advertising, signage, or other promotional materials.
Example of Acceptable Use:
• Selling a line of branded candles online to customers across the U.S.
• Advertising a consulting business using your trademark on a website that reaches clients in multiple states.
Example of Unacceptable Use:
• Using the trademark on prototypes or mockups without offering the product for sale.
• Advertising a service that isn’t yet available to customers.
Why File Before Selling a Product?
Filing for a trademark based on intent to use offers several advantages:
• Early Protection: You lock in your filing date as your priority date. This means no one else can register the same or a similar mark after your application is filed.
• Time to Prepare: You don’t have to wait until your product is ready to file, giving you more time to develop your business while securing your brand.
• Competitive Edge: Filing early can help deter others from using a similar mark, even before your product hits the market.
What Happens If I File Without Selling?
If you file based on an intent to use, you won’t immediately receive your trademark registration. Instead, the process includes:
1. Approval: The USPTO examines your application and, if approved, publishes your mark for opposition.
2. Notice of Allowance: After the opposition period closes without challenges, the USPTO issues a Notice of Allowance.
3. Statement of Use: You must submit proof of use in commerce to finalize the registration. If you’re not ready, you can request extensions for up to three years.
Risks of Filing Without Proof of Intent
If you file an intent-to-use application but don’t follow through, your application could be canceled. Filing without a genuine plan to use the trademark in commerce is also considered fraudulent and can lead to legal consequences.
Tips for Filing a Trademark Before Selling a Product
1. Plan Your Timeline
If your product or service isn’t ready for sale, estimate when it will be and prepare to file your Statement of Use within the allowed timeframe.
2. Be Honest About Intent
Only file an intent-to-use application if you genuinely plan to use the trademark in commerce. The USPTO takes this requirement seriously.
3. Consult a Trademark Attorney
An experienced attorney can help you decide whether to file based on current use or intent to use and guide you through the requirements for each.
Conclusion
You don’t need to be actively selling a product to file for a trademark. The USPTO allows intent-to-use applications, giving you the flexibility to secure rights to your brand while preparing for launch. However, you will need to demonstrate actual use in commerce before your trademark is fully registered. Filing early is often a smart strategy to protect your brand, but it’s important to understand the rules and timelines involved.
If you’re unsure which filing basis to choose or how to prepare your application, consult with a trademark attorney. They can help ensure your application is accurate, timely, and aligned with your business goals. Protecting your brand starts with taking the right steps—whether your product is on the shelves or still in development.