Understanding ITU and Use-Based Trademark Applications
Navigating the trademark registration process can be complex, especially when deciding between an Intent-to-Use (ITU) application and a Use-Based application. Here, we break down the key differences to help you make an informed decision.
Use-Based Trademark Applications—(a) Applications
A Use-Based application is filed when a trademark is already in use in commerce. “Use in commerce” means a bona fide use of a trademark in the ordinary course of trade. This means that the trademark must be genuinely used in connection with the sale of goods or services rather than just being used to advertise or reserve rights in the mark.
A mark is in use in commerce for the services the applicant is providing.
- It is used or displayed in the sale or advertising of services, and the services are rendered in commerce or
- The services are rendered in more than one State or ihe United States and a foreign country, and the person rendering the services is engaged in commerce in connection with the services.
A mark is in use in commerce on goods the applicant is distributing.
- It is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed to it, or if the nature of the goods makes such placement impracticable, then on documents distributed with the goods, and
- The goods are sold or transported in commerce. Commerce means interstate transport or intrastate transport if its use is taken in aggregate and directly affects interstate commerce.
This type of application requires you to provide evidence of the trademark's use in connection with the goods or services listed in the application at the time the application is filed.
The Trademark Office provides a helpful timeline for the process: Section 1(a) timeline.
Key Features of Use-Based Applications:
- Current Use in Commerce: You must be using the trademark in interstate commerce at the time of filing.
- Evidence of Use: You need to submit specimens showing how the trademark is used in connection with your goods or services.
- Faster Registration: Since the trademark is already in use, the registration process can be quicker than ITU applications.
Intent-to-Use (ITU) Trademark Applications—1(b) Applications
An ITU application is filed when a business or individual has a bona fide intention to use a trademark in commerce but has not yet started using it. This type of application allows you to secure rights to a trademark before launching your products or services.
Key Features of ITU Applications:
- Reservation of Rights: ITU applications allow you to reserve a trademark while you prepare to use it in commerce, giving you a competitive edge.
- Bona Fide Intent: You must have a genuine intention to use the trademark in commerce within a reasonable period, typically within three years of filing.
- Additional Steps: After filing an ITU application, you must submit an Allegation of Use (either an Amendment to Allege Use or a Statement of Use) to demonstrate actual use of the trademark before it can be registered.
The Trademark Office provides a helpful timeline for the process: Section 1(b) timeline.
Key Differences Between Use-Based Applications and ITU Applications
- Timing: ITU applications are for marks not yet in use, while Use-Based applications are for marks already in use.
- Requirements: ITU applications require a bona fide intent to use the mark, followed by proof of use, whereas Use-Based applications require immediate proof of use.
- Process: ITU applications involve an additional step of filing an Allegation of Use, which is not required for Use-Based applications.
For more detailed information on trademark applications, you can visit the following USPTO pages:
If you have any questions or need assistance with your trademark renewal, please contact our law firm at (303) 665-9845 for expert guidance. We're here to help you protect your brand and navigate the complexities of trademark law.