Filing a Trademark? Understand the Difference Between Use and Intent
Written by JLG - May 30, 2025
When applying for a federal trademark, one of the first decisions you must make is whether to file based on “use in commerce” or “intent to use.” This choice affects how your application is processed and what information you need to submit. At Jafari Law Group, we help clients determine the correct basis to support a stronger and more accurate application.
What Is “Use in Commerce”?
“Use in commerce” means you are already using the trademark in connection with your goods or services in a way that is legally recognized. To qualify, the trademark must be:
- Displayed on the goods, packaging, or in the sale of services
- Used in a commercial setting across state lines or in U.S. territories
- Actively tied to the marketing and sale of the goods or services
If you file based on use, you will need to submit a specimen showing the trademark as it appears in actual business operations. This could include a product label, a screenshot of your website offering the service, or advertising materials.
What Is “Intent to Use”?
If you have not yet launched your product or service but plan to use the trademark in the future, you may file under the “intent to use” basis. This option allows you to secure a filing date and begin the trademark review process while finalizing your business plans.
However, you will need to file a Statement of Use with a specimen later, proving that you are now using the trademark in commerce. This must be done before the mark can be registered.
Choosing the Right Basis
Filing under the wrong basis can delay your application or cause it to be rejected. Consider these points:
- Choose “use in commerce” if your product or service is already available to the public with the trademark clearly in use.
- Choose “intent to use” if your launch is upcoming but the brand name is confirmed and you want to secure your rights in advance.
You cannot switch from use to intent after filing, but you can amend an intent-to-use application to a use-based one once the trademark is in active use.
How We Can Help
At Jafari Law Group, we guide clients through each step of the trademark process. We help determine the correct filing basis, ensure your specimens meet legal standards, and manage deadlines for filing Statements of Use or extensions when needed. While trademark outcomes are never certain, the right strategy can reduce delays and set you up for long-term brand protection.If you are unsure how to move forward with your application, contact us for a free consultation. We will review your trademark plans and help you file with confidence.