Intent-to-Use vs. Use in Commerce: Which Basis to File

Written by Mary Liberty, licensed U.S. trademark attorney. Updated July 2026 · 8 min read

Every U.S. trademark application has to answer one deceptively simple question: are you already using this mark to sell things, or do you just plan to? Your answer picks your filing basis — use in commerce or intent-to-use — and that choice ripples through your timeline, your cost, and, most importantly, your place in line. Get it right and you can claim a name before you have sold a single unit. Get it wrong and you either file too early with no proof, or too late behind a competitor.

The two filing bases, plainly

Use in commerce — Section 1(a). You file on this basis when the mark is already out in the world doing its job: on products you are shipping across state lines, on a live sales page taking orders, on services you are actively providing to paying customers. Because you are already using it, you must submit a specimen — real evidence of that use — right along with the application.

Intent-to-use — Section 1(b). You file on this basis when you have a genuine, good-faith plan to use the mark but have not launched yet. You are not selling; you are getting in line. No specimen is required at filing because there is nothing to show yet. You prove use later, after you launch, by submitting a Statement of Use.

Both routes lead to the same destination — a registration on the Principal Register — but they start from different places and travel slightly different roads to get there.

Why intent-to-use is a competitive weapon

Here is the part that changes how founders think about timing. U.S. trademark rights are, in large part, a race. When two parties want the same name for related goods, the one with the earlier priority date generally wins. An intent-to-use application sets your priority date to the day you file — even though you will not actually sell anything for months.

Picture two founders building competing skincare brands with the same clever name. One waits until launch day to file on a use basis. The other files intent-to-use ninety days before launch. Even though neither has sold a jar of cream, the second founder now sits ahead in line. When the first founder finally files, the USPTO can cite the earlier application against them. Ninety days of foresight decided who owns the name. I have watched this exact scenario play out, and the founder who filed early is invariably relieved they did.

Side by side

What counts as a specimen (and what doesn't)

The specimen trips people up more than any other part of a use-based filing, so it is worth being precise. A specimen has to show the mark used in connection with the actual goods or services, the way a customer encounters it in the marketplace. For goods, that usually means a photo of the product with the label, tags, or packaging showing the mark — or a screenshot of a live e-commerce page where the product can actually be purchased. For services, it means advertising or marketing that shows the mark and describes the service.

What does not count: a mockup, a rendering, a logo on its own, or a printer's proof. The USPTO wants evidence of real use, not a plan for it. Submitting a digitally created specimen that does not reflect genuine commercial use is a serious problem — it can sink the application and, in bad cases, invite fraud allegations. If you cannot produce a real specimen yet, that is a clear signal you should be filing intent-to-use instead of forcing a use-based filing.

The Statement of Use, step by step

If you file intent-to-use, here is what happens after your mark clears examination and the opposition window. The USPTO issues a Notice of Allowance — essentially, "your mark is approved; now show us you're using it." From that date you have six months to either file your Statement of Use (with a real specimen) or request a six-month extension. You can keep requesting extensions, up to a total of 36 months, if you genuinely need more runway to launch.

This structure is generous by design. It gives a real business time to go from approved application to actual product on the shelf without losing the early priority date. The trade-off is the extra fees for the Statement of Use and any extensions — the modest price of reserving a name before you are ready to use it.

So which should you file?

The decision is usually straightforward once you are honest about where the business is. If you are selling today and can produce a genuine specimen, file use in commerce — it is simpler and cheaper, with no later Statement of Use. If you are pre-launch, or you want to defensively secure a name while you finish building, file intent-to-use and lock in that priority date. The one basis you should never choose is "use in commerce" when you are not actually using it. That shortcut causes far more problems than the extra Statement of Use step ever would.

"But I'm already using it — don't I have rights?"

You do, but they are thinner than most people assume. Simply using a name in business gives you common-law trademark rights, and those rights are real — but they are limited to the geographic area where you actually operate and are notoriously hard and expensive to prove in a dispute. A cafe using an unregistered name in Austin has rights in its local market, but little standing to stop a chain from adopting the same name in Denver.

Federal registration converts those fuzzy, local, hard-to-prove rights into a clean, nationwide, presumptively valid right backed by a public record and the ability to use the ® symbol. So even if you are already selling — and clearly should file on a use basis — the point of registering is not to create rights from nothing. It is to upgrade weak local rights into strong national ones. That upgrade is exactly why filing sooner beats filing later, on either basis.