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Use in Commerce

Registering a trademark is useful and important, but that is not what gives someone rights in a trademark; registration only documents and clarifies common law rights. To get rights in a trademark in the United States, the mark must be used in commerce in the ordinary course of business. 

The U.S. has a “use-based” system for trademark registration. That means that you cannot register a trademark with the Principal Register of the USPTO without the trademark first being used in commerce. In the United States, trademark protection is primarily a function of consumer protection, and the law codifies common law rights created by using the trademark. This is different from most other countries because the owners of unregistered trademarks in many other countries have much more limited rights until they register.

Just because a mark isn’t registered does not mean that it does not have rights. While registration confers benefits to a trademark owner, only use in the marketplace creates trademark rights. Therefore, if an unregistered mark has been in use prior to a similar mark that applies for registration, the older mark still has priority. However, without a registration, showing that priority is more difficult and expensive. And without registration, intentional infringers might not be held accountable, because registration is constructive notice to the public of the registrant’s rights.

You can apply for a trademark before you begin using it by filing an “Intent to Use” application (“ITU”), but you cannot get such a trademark registered until you show the USPTO that you are using the mark in commerce. An ITU can give you an earlier priority date, however you must start using the mark by a certain point, and that deadline can be extended a limited amount of time. If you have a “bona fide intention” to use a mark in commerce, you can file an application based on that intention. After you prove to the USPTO that the mark is in use in the ordinary course of business (what is called “token use” – or use for the sole purpose of acquiring trademark rights – is insufficient), your priority date will be the date you filed the ITU. This means that the USPTO will treat your mark as if you began using it on the application date instead of the date you actually started using it. 

So, if you have a great idea for a business and a distinct trademark to identify your products – but it hasn’t gotten started yet – you may consider filing for an ITU. The Intent to Use application is a savvy way to stake your claim to a trademark idea while the rest of your plans materialize. Otherwise, getting your application in as soon as possible after actual use in commerce is the best decision. 

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