An intent-to-use trademark application under Section 1(b) may be filed by a person who has a “bona fide intention” to use a trademark in commerce. A subjective, speculative intent to use the mark, however, is insufficient.

For a bona fide intent to use, the focus is on objective evidence of real-world activity showing that, at the time of filing the application, “the applicant's intent to use the mark was firm and not merely intent to reserve a right in a mark.” Tiger Lily Ventures Ltd. v. Barclays Cap. Inc., 35 F.4th 1352, 2022 USPQ2d 513, at *10 (Fed. Cir. 2022) (quoting M.Z. Berger & Co. v. Swatch AG, 787 F.3d 1368, 114 USPQ2d 1892, 1897-98 (Fed. Cir. 2015)) (internal quotation marks omitted).

Such evidence need not pre-date the filing date of the application, but should be sufficiently contemporaneous with the filing to support finding that intent to use. Lane Ltd. v. Jackson Int'l Trading Co., 33 USPQ2d 1351, 1355 (TTAB 1994) (finding evidence dated nine to eleven months after the filing date of an application to be sufficiently contemporaneous).

In addition, evidence that an “applicant has the capacity to market and manufacture the goods identified in its application” may support a finding the requisite bona fide intent. Wet Seal Inc. v. FD Mgt. Inc., 82 USPQ2d 1629, 1643 (TTAB 2007) (finding applicant's capacity to market and/or manufacture goods based on having produced them in the past under different marks).

The simultaneous filing of separate applications for two different trademarks for the same goods, however, may support an inference that the intent was to go to market with goods bearing only one of those marks at the time the applications were filed, especially when only one of the marks was used with the goods a year later. See Fruit of the Loom, Inc. v. Sellers, Opposition No. 91268870 (TTAB Dec. 21, 2023).

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.