To file a use-based application the trademark should be used in commerce in the USA at the time the application is filed.
Use in commerce means you should use the trademark in connection with selling or offering the relevant goods and/or services in the USA.
For use-based filing applicant must provide:
- The date trademark was first used in commerce. For goods, it would be the date goods were first time sold or transported. For services, it's the date services were first time rendered.
- Specimen of use showing your trademark being used in commerce in connection with at least one product in each class mentioned in your application. It should be real-life evidence of how you are using your trademark (not a mock-up, printer’s proof, digitally altered image, rendering of intended packaging, or draft of a website that shows how your mark might appear).
Here are examples of acceptable specimens for products:
- Photos of the product showing your trademark directly on the product (e.g. the plastic lunch box with your trademark embossed).
- Photos of the product with a label or a tag showing your trademark affixed to the goods (e.g. the label on a shirt).
- Photos showing product packaging with your trademark clearly displayed.
- Website displaying your trademark where your goods can be purchased or ordered. You should include the URL and date you accessed or printed the web page.
- Sales displays where the goods are sold.
- Product manuals, instructions that are included with the goods.
Here are examples of acceptable specimens for services:
- Services advertisement
- Website for your services
- Marketing and promotional materials
Acceptable specimens for the different types of trademarks are described in detail in the USPTO Trademark Manual of Examining Procedure (TMEP section 904.03)
An Intent-To-Use (ITU) trademark application does not require any evidence of trademark use at the initial filing. The applicant should have genuine intent to use the trademark for all goods and/or services specified in the application in U.S. commerce in the future.
You can provide evidence of trademark use in commerce anytime during the application process except for the time between approval for publication and receiving Notice of Allowance.
If you submit evidence of use before USPTO approves the trademark for publication in Official Gazette the evidence of use is called Amendment to Allege Use (AAU). If your trademark has been approved for publication, then you must wait till a Notice of Allowance is issued.
A Notice of Allowance (NOA) is USPTO notification that a trademark survived the opposition period and is ready to register as soon as acceptable evidence of use is submitted.
Notices of Allowance are issued only for intent-to-use basis applications. No NOA Notices of Allowance are issued for use-based applications.
If no party files either an opposition or request to extend the time to oppose, the USPTO will issue a notice of allowance in about eight weeks after the date the mark is published in the USPTO Official Gazette.
The evidence of use submitted after the Notice of Allowance issuance is called Statement of Use (SOU).
The applicant has up to six months from the date of Notice of Allowance to submit an SOU or to ask for six months extension. You may continue to file extension requests every six months for up to a total of five extensions of time. You must use the mark in commerce and file an SOU within three years (36 months) of the Notice of Allowance issuance date. Each extension request filing requires fees payment. So, it would be wise to start using the trademark in commerce as soon as possible.
When filing Amendment to Allege Use or Statement of Use you should inform USPTO on the date the goods and/or services were first time used in the U.S. commerce and provide goods/services specimen.
- We will charge $125 for the first class and $50 per each additional class
- USPTO fee is $100 per class
- We will charge $125 for the first class and $50 per each additional class
- USPTO fee is $125 per class