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The Zest

Can You Trademark a Name Before You Launch?

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Yes. An intent-to-use application lets you file before you've sold anything, and you finish it later by showing you've started using the mark.

You picked the name, the packaging is at the printer, and the launch is three months out. Can you file for the trademark now, before you've sold anything? Yes. That's exactly what an intent-to-use application is for. You file now, the USPTO examines the mark now, and you finish the application later by showing you've started using it. Your filing date becomes your place in line.

Here's how it works, and where founders get tripped up.

Use-based versus intent-to-use

The USPTO offers two main ways to file. If you're already selling under the name, you file based on use in commerce and include proof of that use. If you're not selling yet, you file based on a bona fide intention to use the mark in commerce. Lawyers call the second one a Section 1(b) application, after the part of the statute that created it.

"Bona fide intention" means a real, good-faith plan to use this name for these goods or services. It isn't a way to park names you might want someday. If your intent is ever challenged, the evidence that helps is the ordinary trail of a real launch: the business plan, the product samples, the packaging quotes, the website in progress.

Why filing early is worth it

The biggest reason is priority. In the United States, trademark rights usually go to whoever used the name first. An intent-to-use filing changes the math: once the mark registers, your filing date counts as your nationwide date of first use. Anyone who starts using a confusingly similar name after your filing date is behind you, even if they beat you to the first sale.

That matters for a brand that will be visible before it's selling. A Kickstarter, a waitlist, a teaser campaign, a trade show: all of those put the name in public before the first dollar comes in. Filing first means the public reveal can't cost you the name.

The second reason is the examination itself. The USPTO reviews an intent-to-use application the same way it reviews any other. If there's a conflict with an existing mark, or the name is too descriptive to register, you find out before you've built the brand, not after. An office action is a three-month clock, and it's a much better problem to have at month three than at year two.

What happens after you file

The application is examined, and if it clears, it's published so others can object. Then, instead of registering, the USPTO sends you a Notice of Allowance. That notice starts a six-month window to file a Statement of Use: a sworn statement that you're now using the mark, with a specimen showing it in use.

If you're not using the mark yet when that window closes, you can request an extension. Extensions come in six-month blocks, and you can keep extending for up to three years after the Notice of Allowance. The first extension is granted on request; later ones require a statement of the reasons you still haven't launched. Each one carries its own fee.

If you start using the mark earlier, before the application is approved for publication, you can file an Amendment to Allege Use instead and convert the application into a use-based one.

What it costs

Under the fee schedule that took effect on January 18, 2025, the base application fee is $350 per class of goods or services. A Statement of Use or Amendment to Allege Use is $150 per class, and each six-month extension is $125 per class. So an intent-to-use filing with one class, used within the first six months, costs $500 in government fees across the two steps. Every extension adds to that.

Three things to know before you file this way

You can't transfer it freely. An intent-to-use application can't be assigned to someone else before you've filed proof of use, except to a successor that takes over the business the mark belongs to. If you're planning to form an LLC after filing, or sell the brand, think that through first.

You still can't use the ® symbol. Until the registration issues, the mark isn't registered, and the circled R has to wait.

The application doesn't replace the search. Filing first doesn't tell you whether the name is free; it just asks the USPTO to check the federal register, months from now. A clearance search before you file is how you avoid spending the filing fee on a name you can't keep.

Who this is for

Intent-to-use is the right move when the name is final, the launch is real, and the brand will be seen before it's sold: product companies waiting on manufacturing, founders raising money on a name, anyone announcing before shipping. It's the wrong move when you're still choosing between three names. Search those first, pick the one you can own, then file.

If that's where you are, you can see how the search and filing packages work on the services page, and the FAQs page answers most of what comes up before a first call.

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(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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