Filing Basis

Filing Basis

A trademark application can be filed on the basis of either:

Actual use of the trademark, or on the basis of an intent to use the mark in commerce, or based on
a foreign application or foreign registration.


Use in Commerce

Use in commerce is a real use of the mark in the ordinary course of trade, in interstate commerce. For an application based on actual use, you must indicate what products the mark appears on:

    • For goods: “interstate commerce” means the goods are sold or transported across state lines with the mark displayed on the goods or the packaging for the goods.
    • For services: “interstate commerce” means offering a service to those in other states or rendering a service which has an effect on interstate commerce (e.g. restaurants, gas stations, hotels, etc.).


Intent to Use

If you have not yet used the mark but plan to do so in the future you may file based on a good faith intention to use the mark in commerce. You do not have to use the mark before you file your application.

You are “reserving” that mark for future use and must then either use the mark in commerce or file
for an extension. Up to five extensions of six months are allowed so you can delay using the mark in commerce for up to three years after the examination process is complete.


Foreign Application or Registration

Foreign applicants may register a trademark based on:

    • Use in interstate commerce or commerce between the United States and a foreign country.
    • Good faith intent to use the mark in interstate commerce or commerce between the United States and a foreign country.
    • Ownership of an application filed in a foreign country (within six months of the foreign filing date).
    • Ownership of a foreign registration.
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