You may assume that every business owner seeking a trademark registration goes through the same, standard application process. However, you must understand that there are two different bases for filing a trademark application, namely intent-to-use and use-in-commerce. Each carries different requirements and implications that you must carefully consider. Continue reading to learn the difference between intent-to-use and use-in-commerce and how an experienced New Jersey trademark lawyer at The Ingber Law Firm can help determine which to pursue.
For trademarks, what is the difference between intent-to-use and use-in-commerce?
On the one hand, an intent-to-use application is intended for trademarks that have yet to be used in commerce. Even so, you must supplement your application with evidence demonstrating your bona fide intention and your comprehensive plan to use this mark publicly in the foreseeable future.
On the other hand, a use-in-commerce application is intended for trademarks already being used in commerce. With this, you must supplement your application with proof of your sales or offerings of sales in interstate commerce for your products and services using this mark. This may be along with evidence of the date you first used this mark in interstate commerce. In addition, you may have to provide tangible evidence of how this mark is displayed on or for your products and services.
Which of the two should I apply for?
Essentially, deciding between an intent-to-use and use-in-commerce trademark application may depend on exactly what you are looking to get out of it.
For one, an intent-to-use application may be particularly appealing if you want to obtain a priority date for your trademark. Specifically, a priority date establishes the date on which you first filed your trademark application and subsequently bars competing parties from applying for confusingly similar marks afterward. Still, you must remember that an intent-to-use does not secure your rights and protections until you use your mark in commerce. This security must be solidified by submitting a Statement of Use (SOU) to the United States Patent and Trademark Office (USPTO) within six months of receiving their Notice of Allowance (NOA).
Then, a use-in-commerce application may work in your best interest if you seek immediate rights and protections as soon as it is approved by the USPTO. What’s more, submitting a SOU and its associated fees is unnecessary. However, you must note that you may be ineligible for this application type if you have only used your mark in intrastate and local commerce, rather than interstate commerce.
Understandably so, you may still feel caught in the middle of these two application types. If this is your case, then what you need is likely strong legal representation from a skilled Essex County, New Jersey intellectual property lawyer. Someone at The Ingber Law Firm is looking forward to your phone call.
