When Should I Apply for a Trademark?

The right answer is now. Well let me explain. First and foremost I am a business and intellectual property attorney so I’m biased. I want you to not only develop your business and products, I want you to protect them. Your intellectual property (your business name, logo, product names, processes, art, etc.) are just as important as the product or service you are selling.

Second, the answer is now because in life we have to prepare. If you know you will be using a name or a logo (two separate applications), it is possible to file for them now. Trademark applications and registrations are granted by the USPTO (United States Trademark and Patent Office) on a first come first serve basis. Meaning, filing an application now vs. later puts you first in line before another applicant with the same or a similar application. More specifically, the USPTO allows folks to file as “intent to use” or “currently in use.”

Unlike patents and copyrights, trademarking is based on use in commerce and the proof of it. A person cannot hold or continue holding trademarks if they don’t intend to/or currently use them. And, if they don’t show proof of this use. Let me explain. For applications for currently in use standard word marks (ie. your company name) or stylized design marks (ie. your logo), we must show current evidence of use in commerce. Maybe you know you want to use branding but don’t have commerce up and running. We can still start this process!

If we file your application(s) as “intent to use) we won’t have to show evidence of use in commerce during the application. Instead when you make it through the application process instead of receiving the trademark registration, you receive what’s called a “notice of allowance.” We would then have 6 months to prove your use in commerce with evidence (pictures of invoices, transactions, packaging with your branding, etc.). And even if you’re not ready then, we can request an extension for additional time.

What does all this mean? It means start your trademark applications now. They can take just 2 months to be assigned to a trademark examiner and 6 months-1 year to go through all of the application steps. When you are busy, heavily sharing your brand, and not worried about your intellectual property—-you could either have a pending “intent to use” application or no application at all. Apply now either as currently in use if you are currently using. Or don’t wait, apply for “intent to use.” Just know that it’s a great option and one that could protect your company (and your peace of mind) down the road.