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Trademark Basic Facts
BASIS FOR FILING
The application should include your "basis"
for filing. Most applicants base their application
on their current use of the mark in commerce, or
their intent to use their mark in commerce in the
future.
What is "use in commerce"?
For the purpose of obtaining federal registration,
"commerce" means all commerce that the
U.S. Congress may lawfully regulate; for example,
interstate commerce or commerce between the U.S.
and another country. "Use in commerce"
must be a bona fide use of the mark in the ordinary
course of trade, and not use simply made to reserve
rights in the mark. Generally, acceptable use is
as follows:
For goods: the mark must appear on the goods, the
container for the goods, or displays associated
with the goods, and the goods must be sold or transported
in commerce.
For services: the mark must be used or displayed
in the sale or advertising of the services, and
the services must be rendered in commerce.
If you have already started using the mark in commerce,
you may file based on that use. A "use"
based application must include a sworn statement
(usually in the form of a declaration) that the
mark is in use in commerce, listing the date of
first use of the mark anywhere and the date of first
use of the mark in commerce. A properly worded declaration
is included in the USPTO standard application form.
The applicant or a person authorized to sign on
behalf of the applicant must sign the statement.
The application should include a specimen showing
use of the mark in commerce.
What is "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 or bona fide intention to use the
mark in commerce. You do not have to use the mark
before you file your application.
An "intent to use" application must include
a sworn statement (usually in the form of a declaration)
that you have a bona fide intention to use the mark
in commerce. A properly worded declaration is included
in the USPTO standard application form. The applicant
or a person authorized to sign on behalf of the
applicant must sign the statement.
NOTE: If you file based on intent to use, you must
begin actual use of the mark in commerce before
the USPTO will register the mark; that is, after
filing an application based on "intent to use,"
you must later file another form ("Allegation
of Use") to establish that use has begun. See
"Additional Requirements for ‘Intent
to Use’ Applications" for more information.
Is there any other possible filing basis?
Yes. Although not as common, you may base
your application on international agreements. Under
certain international agreements, if you qualify,
you may file in the U.S. based on a foreign application
or on a registration in your country of origin.
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