How to Trademark a Product Before It Exists

By Joe Stone

The only way to establish trademark rights is to actually use the trademark in commerce. If your product is not ready for the marketplace, you do not have any trademark rights related to the product. However, if you are within 18 months of marketing your product, you can file an "intent-to-use application" with the U.S. Patent and Trademark Office to establish yourself as the first to use the trademark.

The only way to establish trademark rights is to actually use the trademark in commerce. If your product is not ready for the marketplace, you do not have any trademark rights related to the product. However, if you are within 18 months of marketing your product, you can file an "intent-to-use application" with the U.S. Patent and Trademark Office to establish yourself as the first to use the trademark.

Trademark Law Basics

A trademark is any symbol, logo or phrase used on your product to distinguish it from similar products and/or manufacturers in the marketplace. Registering your trademark with either the federal or state government is not required to establish your rights. The purpose of trademark registration is to give the public notice of your claim to trademark rights and provide more ways to protect your trademark from infringement by others. You can lose your trademark rights by failing to continue using the trademark on your product.

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USPTO Intent-to-Use Application

You can protect a future trademark for a product not ready for market by filing an intent-to-use application with the USPTO. The basis for such an application is your good-faith intent to use the trademark in commerce. This means the trademark you intend to use is more than just an idea but also part of your business activities, such as creating product samples. If you file your intent-to-use application before another party uses the same trademark or a very similar trademark, you will be considered the first user of the trademark.

Application Process

You may file your intent-to-use application with the USPTO by mail or online. After filing the application, you can expect to wait at least three to four months before receiving notice from the USPTO that your application has been reviewed. The USPTO may request more information about your application. Once no further information is needed and the USPTO finds your trademark suitable for registration, it is published for 30 days in the Official Gazette. During this time, anyone can object to registration of your trademark. If no objections are made (or an objection is denied), you will receive a Notice of Allowance from the USPTO -- which means your trademark will be registered once it is in use.

Statement of Use

The final step to registering your trademark using an intent-to-use application is to file a document called "Statement of Use" with the USPTO. This document provides evidence that you are using your trademark in commerce. It must be filed within six months of the date on your Notice of Allowance -- not the date you received the notice. If you cannot get your product to market before the six months expires, you can request an extension from the USPTO so long as you continue your efforts to market the product. The extension period is an additional six months, and you can request up to five extensions.

Protect your brand. Register My Trademark Now
How to Trademark an Idea

References

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Trademark Laws for Company Logos

A trademark, such as a company's logo, is a design, phrase, or combination of the two that identifies your product to the buying public. Using your trademark in commerce gives you certain rights to use it exclusively, but additional protection is granted by law. Laws exist at the state, federal and international levels to help you protect your exclusive right to use your trademark.

My Trademark Registration Lapsed

You may be able to renew or register your trademark again if you let the registration lapse. The U.S. Patent and Trademark Office handles all trademark registrations and renewals. The office must follow the registration rules set by the U.S. Trademark Act. If your trademark has lapsed, your options depend on how long ago the registration lapsed and whether the office made a mistake while processing your renewal paperwork.

When You're Applying for a Trademark Is it Better to Apply in a Lot of Categories or Just a Few?

Trademark applicants face a classic conundrum: Do you aim for a broad trademark by applying in many categories or should you be more frugal and risk limiting how you can use your trademark in the future? Knowing why categories exist and why selecting the right categories is so important can help resolve some of this tension and help you chart a path forward as you complete your trademark application.

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