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.

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.

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.

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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.

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Trademark vs. Service Mark


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What to Do When Someone Steals Your Ideas

An unexpressed idea enjoys no legal protections. If you have fixed your idea in a tangible medium, such as by recording a song, writing a novel or creating a prototype invention, it may be entitled to the protection as intellectual property, and you may have legal recourse against someone who steals your idea. The ease with which you may enforce your rights depends on which branch of intellectual property law applies to your idea or creative work.

Can I Trademark Before I Sell the Product?

Since the federal trademark registration process takes several months, it makes sense to apply for trademark registration as soon as you design your mark while in the initial stages of product development. Your company can file a federal trademark registration application before you sell any products. You can also potentially secure common law trademark rights in your name, logo or slogan through actual use in the marketplace, such as pre-sale marketing. Under common law, a company automatically secures trademark rights once the original mark is used in association with its goods or services offered in the marketplace.

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