A client once came to me excited about starting her company. She had the name picked out, the branding in motion, and a real plan. Even though her launch was still six to eight months away, she assumed she would have to wait to file a trademark until everything was live. Luckily, I could see the stress start to disappear once I explained that she could still begin the trademark process. There is a trademark process designed exactly for this stage of business.
Section 1(a) “Use in Commerce”
A Section 1(a) application is for a brand that is already using the mark in commerce for the goods or services listed in the application. “Use in commerce” means you are currently selling your product or providing your service under the mark.
A 1(a) filing requires details like dates of first use and a specimen (proof) showing how the mark is used with the goods/services. A specimen is basically the “show your work” moment in trademark law. There needs to be actual proof that the mark is being used in commerce.
A Section 1(a) application is the most straightforward way to file a trademark. Once submitted, the application proceeds directly to examination without any additional post-approval steps related to proving use, aside from responding to a potential Office Action. The value of filing under 1(a) is speed and simplicity. The mark is already in use, so the application can move toward registration without the added requirement of later demonstrating that the brand has launched.
Section 1(b) “Intent to Use”
A Section 1(b) application is for someone who has a bona fide intention to use the mark in commerce, even though the brand is not officially live yet. This was what my client needed. She was doing the work, planning the launch, and taking the brand seriously. She was not selling her product yet, but was still able to protect her potential brand.
One of the most important concepts in trademark law is the filing date. Trademark rights in the United States are largely tied to priority, meaning who claimed rights to a mark first. The filing date establishes a place in line at the United States Patent and Trademark Office, which can determine who has superior rights if another business later applies for a similar name. Even if a brand has not officially launched, securing an earlier filing date can prevent competitors from registering confusingly similar marks while development is still underway.
That is where a Section 1(b), or “intent-to-use,” application becomes valuable.
A Section 1(b) application allows an applicant to lock in that priority filing date while finishing preparations for launch. Proof of use is not required at the beginning of the process. The application is examined first, just like any other trademark filing. If approved, the USPTO issues a Notice of Allowance, which essentially confirms that the mark has cleared examination and may proceed toward registration once commercial use begins.
After a Notice of Allowance is issued, six months are provided to file a Statement of Use showing that the trademark is now being used in commerce. If additional time is needed, extension requests may be filed in six-month increments. The rules allow multiple extensions, giving businesses a longer overall window to complete development and begin using the mark properly.
The tradeoff is that a 1(b) application involves additional steps later in the process. Filing a Statement of Use and, if necessary, extension requests adds extra filings and government fees compared to a Section 1(a) application. Even so, the ability to secure an early filing date often outweighs those additional steps and fees.
The Difference
A 1(a) filing = “My mark is currently in business.”
A 1(b) filing = “I intend to use it in the future.”
Before You File
The “best” option is the one that matches reality. A rushed 1(a) application can create specimen headaches. A delayed 1(b) application can leave your name exposed while you build. The right strategy depends on what you sell, how you sell it, what state your brand is in today, and what your launch plan really looks like.
To get the best advice and strategy for your situation, contact a trademark attorney before filing. The goal is not just to file. The goal is to file the right way, at the right time, so your brand is protected while it grows.