Can I Trademark a Name I haven’t Used??

How do you protect a name, slogan, or logo you haven’t used yet?? 

This is an extremely common question, especially when it comes to new business owners, or entrepreneurs launching a new product. 

Here’s the situation: you don’t want to launch the product to the public until you know the name is secured…BUT…the way the USPTO works, you can’t actually complete the full trademark process without showing proof of use of the trademark in commerce.

So what do you do?

There are actually two ways to file a trademark application (reason #685 why I HIGHLY recommend you hire a trademark attorney to walk you through the process and handle your trademark needs). 

CLICK HERE to email my firm and learn more about our trademarking process!

If you are already using the mark, the application filed would be a more traditional and complete application. 

As a mandatory part of this application, you must provide (1) the date the mark was first used in commerce, (2) the first date the mark was used at all, and (3) photographic evidence of the mark being used in EACH class you plan to file in. (For example, if you want to file for registration in connection with clothing, online education, and journals, you would need photographic proof of the mark on clothing tags for the apparel, a screen shot of your website for the online education, and a photo of the branding or tags/packaging for the journals, in order to be successful for all three classes.)

BUT…what if you aren’t yet using the mark, or you want to secure the rights to the name BEFORE you launch the product/send to branding, etc. 

Enter, the “Intent to Use” application. 

The USPTO allows applicants to file what’s called a 1(b) “Intent to Use” application when they aren’t yet using the mark in connection with products or services they’re selling, but want to reserve the name for the near future. 

This is ideal for those who are (1) wanting to secure the name before they launch or spend money on branding, (2) are in the process of launching, or (3) have used the name in connection with some parts of their business, but want to branch out into other areas for which they haven’t yet launched.

When you file an “Intent to Use” application, the application works just like a traditional one, except there is no requirement to submit a photograph of the mark in use. Once the mark is approved, you’ll have 6 months to either submit the proof of use, or file an extension, to give yourself another 6 months. If you’re planning to launch the product within a year, an Intent to Use application can be a great option to reserve your mark and ensure you will have the ability to receive registration. More questions? Email me at christy@christywesterfeld.com or comment below!

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