Intent to Use Trademark Application

In Q1 2025, ITU filings accounted for 39% of applications, compared with 45% on a use-based basis.

The ITU application is authorized under Section 1(b) of the Lanham Act, added by the Trademark Law Revision Act of 1988, which permits applicants with a bona fide intent to use a mark to file before actual use. It gives applicants a legal mechanism to secure a priority filing date, essentially reserving their place in line, while they complete product development, launch preparations, or other pre-commercial activities.

How an intent to use trademark application works

The ITU process follows a defined sequence of steps before a trademark can be fully registered.

1. File the application. The applicant submits a trademark application to the USPTO, selecting "intent to use" as the basis of filing. The application must include the mark, the owner's contact information, and the specific class of goods or services the mark will be used with.
2. USPTO examination. A USPTO examining attorney reviews the application for compliance with registration requirements, including distinctiveness and conflicts with existing marks. If issues arise, the examiner issues an office action requiring a response.
3. Publication for opposition. If approved, the mark is published in the Official Gazette, giving third parties 30 days to oppose registration.
4. Notice of Allowance. If no opposition is filed, or if any opposition is resolved, the USPTO issues a Notice of Allowance (NOA), though the high volume of filings in recent years has increased trial cases on the TTAB docket. This signals that the mark is approved pending proof of use.
5. Statement of Use or extension request. The applicant must file a Statement of Use (SOU) within six months of the NOA, demonstrating that the mark is now being used in commerce. Filing the SOU now costs $150 per class, a 50% increase from the prior fee. Extensions can be requested in six-month increments, up to a total of three years from the NOA date, for an additional fee per extension.
6. Registration. Once the USPTO accepts the Statement of Use, the trademark is registered.

Until the Statement of Use is accepted, the mark is not officially registered. The ITU application establishes a priority date, but it does not confer full trademark rights on its own.

Why an intent to use trademark application matters

For businesses still in development, the ITU application solves a practical problem: U.S. trademark law requires use in commerce before registration, but waiting to file until a product launches means losing priority to anyone who files first.

By filing an ITU application, an applicant locks in a priority date from the moment of filing. If another party later tries to register the same or a confusingly similar mark, the ITU applicant's earlier filing date takes precedence, even if the other party began using the mark before the ITU applicant did.

This is especially valuable for startups, product launches, and brand expansions where significant investment in branding, packaging, or marketing precedes the actual sale of goods or services. Filing early protects that investment before the mark ever reaches the market.

Common uses and examples of an intent to use a trademark application

The ITU application is widely used across industries and at various stages of business. Common scenarios include.

• Product launch preparation. A consumer goods company develops a new product line and selects a brand name months before the product ships. Filing an ITU application secures the name while manufacturing and distribution are finalized.
• Startup branding. A tech startup chooses a company name and logo before its app is live. An ITU application protects the mark during development and beta testing.
• Franchise or licensing expansion. A business planning to expand into new product categories files ITU applications for marks it intends to use in those categories, establishing priority before the expansion begins.
• Seasonal or event-based businesses. A business launching a seasonal product files an ITU application well in advance of the selling season to ensure the mark is protected before goods reach consumers.

In each case, the applicant has a genuine, good-faith intent to use the mark in commerce, a legal requirement for the ITU basis to be valid.

Key characteristics of an intent to use trademark application

Priority date from filing. The application filing date becomes the applicant's constructive use date once the mark registers. This date is used to resolve conflicts with later applicants.

No specimen required at filing. Unlike an "in commerce" application, an ITU application does not require a trademark specimen or evidence of the mark in actual use at the time of filing. The specimen is submitted later with the Statement of Use.

Good faith requirement. The applicant must have a bona fide intention to use the mark in commerce. Filing an ITU application without a genuine intent to use the mark is grounds for invalidation.

Time-limited. The window to file a Statement of Use is not indefinite. Applicants have six months from the Notice of Allowance, with the option to request up to five additional six-month extensions. Failure to file within the allowed period results in trademark abandonment.

Per-class fees apply. The USPTO charges a base filing fee of $350 per class of goods or services. Each extension request also carries a fee.

Intent to use vs. use in commerce applications

The ITU application and the use-in-commerce application are the two federal filing bases available to U.S. applicants. The key distinction is timing: a use-in-commerce application requires that the mark already be in active commercial use at the time of filing, along with a specimen demonstrating that use. An ITU application requires only a genuine intent to use the mark in the future.

Understanding what "use in commerce" means for trademark purposes is important when deciding which basis to select. Choosing the wrong basis, for example, claiming use in commerce before the mark has actually been used, can invalidate the registration. If there is any uncertainty about whether a mark qualifies as in use, the ITU basis is generally the safer choice.

Considerations and limitations

• Genuine intent is legally required. The USPTO does not verify intent at the time of filing, but the requirement is enforceable. A trademark registered on an ITU basis can be challenged and canceled if the applicant lacked a bona fide intent to use the mark when the application was filed, as the Ninth Circuit affirmed in BBK Tobacco v. Central Coast Agriculture (2024), where applications were canceled for lack of bona fide intent.
• Registration is not immediate. The ITU process adds steps and time—the full process usually takes 12 to 18 months—compared to a use-in-commerce application, though first action pendency has dropped to 5.6 months as of FY 2025. Applicants should plan for the additional time required to file the Statement of Use and for the USPTO to process it. Currently, registration after filing the SOU takes approximately 4 months.
• Extensions have limits and costs. Each six-month extension requires a fee and a showing of good cause. The total time allowed from the Notice of Allowance is capped at 36 months.
• A trademark search is still essential. Filing an ITU application does not guarantee registration. Conducting a thorough trademark search before filing helps identify potential conflicts and reduces the risk of a rejection or opposition, particularly given that trademark application success rates declined to 51.7% between 2016 and 2020.

Related terms and next steps

Understanding the ITU application is most useful in the context of the broader trademark registration process. Several related concepts are directly relevant:

• Use in commerce. The legal standard a mark must meet before a trademark can be fully registered; required for ITU applicants when filing the Statement of Use
• Trademark specimen. The evidence of use submitted with the Statement of Use is not required at the time of an ITU filing, but is required before registration is granted
• Trademark search. A search of existing registered and pending marks is conducted before filing to identify potential conflicts
• Trademark abandonment. What occurs when an ITU applicant fails to file a timely Statement of Use or extension request
• Common law trademark. Rights that arise from actual use in commerce, without federal registration; an ITU applicant does not hold common law rights until the mark is actually used

For applicants preparing to file, working with a trademark attorney can help ensure the correct filing basis is selected, the application is complete, and the Statement of Use is filed accurately and on time.

FQAs about trademark application

How much does an intent-to-use trademark application cost in total?

The base filing fee is $350 per class of goods or services, with an additional $150 per class due when filing the Statement of Use. Each six-month extension request carries its own fee, so applicants who need the maximum of three years from the Notice of Allowance will pay extension fees in addition to the initial filing and SOU costs.

Can an intent to use trademark application be assigned or transferred to another party?

An ITU application can only be assigned before the Statement of Use is filed if the transfer is made to a successor of the applicant's business or the portion of the business to which the mark pertains. Assigning an ITU application to an unrelated third party before an allegation of use is filed renders the resulting registration void, which makes early-stage acquisitions and startup transactions involving pending ITU applications particularly sensitive to get right.

What counts as evidence of bona fide intent if the USPTO or a challenger questions it?

Courts and the USPTO may look to business plans, market research, product development records, manufacturing agreements, or other documentation demonstrating that the applicant was actively preparing to use the mark at the time of filing, rather than merely reserving it speculatively. The absence of any such documentation is the kind of gap that led to cancellation in BBK Tobacco v. Central Coast Agriculture (2024).

What happens if the product launch is delayed and the Statement of Use deadline passes?

If the applicant fails to file a Statement of Use or a timely extension request within six months of the Notice of Allowance, the application goes abandoned, and the priority date is lost. Because extensions must be filed before each deadline, not after, applicants with uncertain timelines should carefully calendar extension deadlines and file proactively rather than wait to see whether the launch materializes.

Does filing an intent-to-use application give the applicant any trademark rights in the meantime?

The ITU application establishes a priority date that relates to the filing date once the mark registers, but it does not confer common law trademark rights or the right to use the ® symbol during the pendency period. The applicant holds no enforceable trademark rights against infringers until the Statement of Use is accepted and registration is granted.

When should a business choose an intent-to-use application over a use-in-commerce application?

Any time there is genuine uncertainty about whether the mark has met the legal threshold for use in commerce, meaning the mark has been used in the ordinary course of trade, not merely in token or internal use, the ITU basis is the safer filing choice. Claiming use in commerce prematurely is a substantive defect that can invalidate the entire registration, whereas filing ITU and later converting to use in commerce through the Statement of Use process carries no such risk.