Can I Trademark Before I Sell the Product?

By Brette Sember, J.D.

Can I Trademark Before I Sell the Product?

By Brette Sember, J.D.

Filing for a trademark through the United State Patent and Trademark Office (USPTO) can be a lengthy process. Because of this, you should file for your trademark as soon as you know what it is, even if that is before your product is ready to be sold.

Man looking at desktop computer which says "trademark application" on messy desk

Two Ways to Get a Trademark

There are two methods to getting a trademark:

  1. Filing with the USPTO. Getting your trademark this way allows you to use the registered trademark symbol (® ) after your trademark and gives you the right to enforce your trademark in federal court against any infringement. It also prohibits anyone else from registering the same trademark and can provide the basis for registration of an international trademark. You can file your trademark registration before you have a product ready to sell, but to apply for the trademark, you must be able to clearly identify the product you are going to be selling.
  2. Common-law trademark. When you use a logo, slogan, or name in the marketplace, even if it's only in pre-sale advertising or marketing, you acquire common-law rights to it. That means you can obtain a common-law trademark before your product is actually ready to sell. A common-law trademark gives you exclusive ownership rights, unless someone else has registered a trademark with the USPTO before you began using it.

Steps for Filing Federal Trademark Registration

There are a series of steps involved in registering your trademark with the USPTO:

  1. Search the USPTO database. Your first step should be to do a search to determine if the mark is trademarked or in use by someone else. First search the USPTO database for registered marks, then do an internet search to see if the mark is in common-law use. It can be a good idea to hire a company to do the search so that it is thorough.
  2. Reserve the name. Once you have determined the name is available, you can file to reserve the name while you work on your application.
  3. Create your mark as a drawing. Get details on the requirements here.
  4. Determine your basis for filing. "Use in commerce" or "intent to use" are the categories to choose from. "Use in commerce" means the mark is already in use in commerce when you file. Choose "intent to use" when your product is not yet for sale but you plan to use the trademark in the future. You'll need to include a Verified Statement of Intent with your application that explains your plans to use the mark.
  5. File your initial application form. Choose which application form pertains to your situation, file it, and pay the appropriate filing fee. You can then track your application status online.
  6. Await approval. Once you have submitted the required paperwork, your application receives a serial number and is reviewed by a USPTO examiner. If the examiner requests further information, you must respond within six days or the application will become abandoned.
  7. Receive approval. If your mark is approved, you will be notified and the news will be published in the USPTO Official Gazette. If your mark was granted based on your intent to use, you have six months to put it into use and file a Statement of Use. If you cannot meet that deadline, you can ask for a six-month extension.

A trademark is an important way to protect your company and your product. Filing for federal protection gives you clearly identifiable rights in the trademark.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.