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Intent to use vs use in commerce: choosing your filing basis
You can file before you launch. The trade-off is a second filing, and a second USPTO fee, once sales begin.
Written by Trademarky. Last checked September 4, 2026. 6 min read.
The two filing bases
A U.S. trademark application has to state the legal basis on which registration is sought. For applicants in the United States there are two: Section 1(a), use in commerce, for a mark already in use with every good or service listed; and Section 1(b), intent to use, for a mark you have a bona fide intention to use but have not used yet. Applicants based abroad can also rely on a home-country application or registration under Section 44, and Madrid Protocol filers on Section 66(a).
The basis is set for each class, so one application can claim use for the goods you sell today and intent to use for a class you plan to add. It can also change during examination: an intent-to-use application becomes a use-based one when you show use, and a use-based application filed too early can usually be amended to intent to use before publication, as long as the original claim was an honest mistake.
Both bases cost the same to file: the USPTO filing fee of $350 per class. The difference is what happens afterwards.
What use in commerce means
"Use in commerce" is a defined term. The Trademark Act describes it as bona fide use of a mark in the ordinary course of trade, not use made merely to reserve a right in the mark. "Commerce" means commerce that Congress can regulate: sales across state lines, between the United States and another country, or that otherwise affect interstate commerce. Selling online to customers in other states qualifies, and so does a local service that serves interstate travelers.
- For goods, the mark must appear on the goods themselves, on their containers, tags or labels, or on displays associated with them, and the goods must be sold or transported in commerce.
- For services, the mark must be used or displayed in selling or advertising the services, and the services must actually be rendered to customers in commerce.
What does not count: a domain name, an LLC filing, a social media handle, a "coming soon" page, a single shipment to a friend to create a paper trail, or a test batch that never reaches a paying customer. The USPTO asks for proof in the form of a specimen, and a claim of use that turns out to be false can make the registration vulnerable later.
When to choose each basis
Choose use in commerce when you are selling the goods or rendering the services under the mark today and can show a real specimen for each class. The application is complete at filing, there is no second filing and no second USPTO fee, and the mark registers as soon as examination and publication are done.
Choose intent to use when launch is weeks or months away, when you are still deciding between names, or when you want a filing date before you invest in packaging, signage and a domain. You need a genuine intention to use the mark on the goods and services you list, and it helps to be able to show it: a business plan, samples, a marketing calendar. Filing on names you have no plan to use is not permitted and invites a challenge.
After the Notice of Allowance
An intent-to-use application is examined and published like any other. If no one opposes it within 30 days of publication, the USPTO issues a Notice of Allowance (NOA) instead of a registration certificate. The NOA starts a six-month clock. Before it runs out, you must file either a Statement of Use or a request for an extension of time.
The Statement of Use (SOU) states the date you first used the mark anywhere and the date you first used it in commerce, includes a specimen for each class, and carries a USPTO fee of $150 per class. You may delete goods or services you are not yet using, but you cannot add any. Once the SOU is accepted, the registration issues.
If you are not yet in use, file a request for an extension of time. Each extension adds six months and costs $125 per class. You may file up to five, for a maximum of 36 months after the NOA. The first is granted on request; the second and later ones must describe your ongoing efforts to use the mark, such as product development, market research or steps toward regulatory approval.
You can also show use earlier. Before the application is approved for publication, an Amendment to Allege Use does the same job as a Statement of Use and lets the application proceed on a use basis. Between approval for publication and the NOA neither can be filed; that gap is known as the blackout period.
The two bases side by side
| Use in commerce, Section 1(a) | Intent to use, Section 1(b) | |
|---|---|---|
| When you can file | Once the mark is in use with the listed goods or services | As soon as you have a bona fide intention to use it |
| Specimen | Filed with the application | Filed later, with the Statement of Use |
| USPTO fee at filing | $350 per class | $350 per class |
| Later USPTO fees before registration | None | Statement of Use $150 per class; each extension $125 per class |
| After publication | Registration certificate | Notice of Allowance, then Statement of Use, then registration |
| Time to registration | The shorter of the two | Adds the time until you file, and the USPTO accepts, the Statement of Use |
| Priority date | Filing date | Filing date |
| Selling the application before registration | Allowed | Only together with the business it belongs to, until use is shown |
Common mistakes with either basis
- Claiming use before it exists. The specimen must show use as of the filing date for a Section 1(a) application, or as of the Statement of Use for a Section 1(b) one.
- Letting the six-month clock run out. If neither a Statement of Use nor an extension is filed in time, the application is abandoned. A petition to revive is available only for unintentional delay and only within a short window.
- Filing the Statement of Use for goods you do not yet sell. A registration covering goods that were never in use is vulnerable to cancellation for those goods.
- Forgetting that each class is separate. A specimen and the fees are due for every class. If one class is in use and another is not, the class in use can be split off into a divisional application, for a USPTO fee, so it can register while the other waits.
- Mixing up the two dates. The USPTO asks for the date of first use anywhere and the date of first use in commerce. They can be the same, but they are separate questions.
When you file with Trademarky, your attorney chooses the basis with you on the free call, checks the specimen or the intent-to-use plan, and tracks the Notice of Allowance deadline. The pricing page shows which fees are included and which are USPTO pass-throughs.
Not sure whether you are in use yet? Run the free check first; the report explains which basis fits and what the follow-on fees would be. Check my trademark for free
Questions about this topic
Can I switch from intent to use to use in commerce after filing?
Yes. File an Amendment to Allege Use before the application is approved for publication, or a Statement of Use after the Notice of Allowance. Both need a specimen for each class and a USPTO fee per class. Between approval for publication and the Notice of Allowance neither can be filed.
How many extensions can I file before the Statement of Use?
Up to five, each for six months, so at most 36 months after the Notice of Allowance. Each costs a USPTO fee per class, and from the second one onward you must describe the efforts you are making to start using the mark.
Does an intent-to-use application protect my name before I launch?
It reserves your place. Once the mark registers, your rights date back to the filing date nationwide, ahead of anyone who started using a similar mark after that date. While it is pending, the application also appears in the USPTO records that examiners and other filers search, which deters later conflicting filings.
Related guides
- Trademark specimens: what the USPTO accepts and what it refuses: What a trademark specimen is, the difference between specimens for goods and services, examples the USPTO accepts and refuses, and how to prepare one.
- How long does a trademark take?: A realistic U.S. trademark timeline: the wait for the first USPTO review, the 30-day publication, when the certificate arrives, and what slows it down.
- How much does a trademark cost?: What a U.S. trademark costs: the $350 USPTO fee per class, attorney fees, the later filings that keep a registration alive, and what is refundable.
This guide is general information to help you understand the process. It is not legal advice and does not create an attorney-client relationship. For advice on your own mark, talk to an attorney on a free call.
Contact
Trademarky, LLC, 78 SW 7th St, 5th FL, Miami, FL 33130. (305) 562-6800, hello@trademarky.io. Monday to Friday, 9am to 5pm ET. Available by appointment.
This free check is an AI-assisted preliminary screening against known U.S. trademark records. It is not a comprehensive clearance search and not legal advice. Only a licensed attorney can advise you on whether to file.