Section 1(b)

Section 1(b) is a filing basis under the United States Trademark Act (the Lanham Act) that allows an applicant to apply for federal trademark registration based on a bona fide intent to use a mark in commerce, even before the mark has actually been used. It is one of the primary bases for filing a trademark application with the United States Patent and Trademark Office (USPTO). Unlike a use-based application, Section 1(b) reserves the applicant's priority date while allowing time to launch the product or service.

How Section 1(b) works

The applicant must have a genuine, good-faith intention to use the mark, not merely a speculative idea. After the USPTO examines and approves the application, it is published in the Official Gazette for a 30-day opposition period. If no opposition is filed, the USPTO issues a Notice of Allowance.

From that point, the applicant has six months to either begin using the mark in commerce and file a statement of use, or request an extension. Extensions can be requested in six-month increments, up to a total of 36 months from the Notice of Allowance date. Once a valid Statement of Use is accepted, the USPTO issues the registration.

Key characteristics

• Intent, not use, is the threshold. The applicant must have a genuine, good-faith intent to use the mark. Speculative intent is not sufficient.
• Priority date is established at filing. Once the mark is registered, the filing date serves as the constructive use date and can be used against later claimants.
• Registration is not immediate. The applicant holds an "allowed" status until a Statement of Use is filed and accepted.
• Time-limited. Failure to demonstrate use within the 36-month window results in abandonment of the application and loss of the priority date.
• Assignment restrictions apply. A Section 1(b) application generally cannot be assigned to another party until a Statement of Use has been filed.

Why Section 1(b) matters

Section 1(b) allows businesses to secure a priority filing date before a product or service launches, valuable in competitive markets where another party might attempt to register a similar mark. The priority date established at filing can defeat later-filed applications or third-party claims that begin using a confusingly similar mark after the applicant's filing date.

For startups and businesses still in development, Section 1(b) provides a practical pathway to protect brand identity between concept and commercial launch.

Section 1(b) vs. Section 1(a)

Under Section 1(a), the applicant must already be using the mark in commerce at the time of filing and must submit a specimen showing that use. Section 1(b) is for marks the applicant intends to use. Both bases lead to the same federal registration, but Section 1(b) requires an additional step: filing a statement of use before registration is granted.

Related terms

• Section 1(a): The use-in-commerce filing basis, for marks already in active commercial use at the time of application.
• Section 44: A filing basis for foreign applicants relying on a home-country trademark application or registration.
• Business name reservation: A state-level mechanism for holding a business name, distinct from federal trademark protection.

FAQs about Section 1(b)

Can a Section 1(b) application be converted to Section 1(a) if the mark goes into use early?

Yes. If use begins before the USPTO issues a notice of allowance, the applicant can file an amendment to allege use to convert to a Section 1(a) basis. Once a notice of allowance has been issued, the applicant must proceed through the standard statement of use process.

What qualifies as evidence of bona fide intent?

The USPTO does not require proof of intent at filing, but documentary evidence, such as business plans, product development records, or manufacturer correspondence, can be critical if the application is challenged. An application filed without any supporting business activity is vulnerable to cancellation in an opposition or cancellation proceeding.

Does Section 1(b) cost more than Section 1(a)?

Base application fees are the same, but a Section 1(b) application requires an additional fee when the statement of use is submitted ($150 per class), and each six-month extension request carries its own fee ($125 per class). Applicants who use the full extension period across multiple classes can accumulate costs well beyond those of a Section 1(a) filing.