Intent to Use vs. Use in Commerce: Choosing a Trademark Filing Basis (1(a) vs 1(b))
Updated November 16, 2026.
Short answer: Every U.S. trademark application needs a "filing basis," the legal reason you're allowed to apply. Most applicants pick one of two. Use in commerce (Section 1(a)) is for marks you're already using to sell goods or services, and you prove it with dates of use and a specimen when you file. Intent to use (Section 1(b)) is for marks you plan to use. You file now with a sworn statement of a genuine (bona fide) intention to use the mark, then prove use later with a Statement of Use before the mark can register. If you're already selling under the brand, 1(a) is usually faster and cheaper. If you haven't launched yet, 1(b) lets you claim your place in line today.
Markavo is a flat-fee trademark law firm. Licensed attorneys prepare and file U.S. (and Mexico) applications, choose the right filing basis with you, and handle the Statement of Use if you file on intent to use. You can meet them on our About page. This guide explains how each basis works, what it costs, and how to pick.
What a filing basis is
The USPTO requires every application to state at least one filing basis (TMEP §806). The basis tells the examining attorney why you're entitled to apply and decides what you must prove before the mark registers.
| Basis | Who uses it | What you prove, and when |
|---|---|---|
| Section 1(a): use in commerce | Businesses already selling goods or providing services under the mark | Dates of first use and a specimen showing the mark in use, with the application |
| Section 1(b): intent to use | Businesses that haven't launched yet, or haven't launched every product they want covered | A verified statement of a bona fide intention to use the mark at filing; actual use (with a specimen) later, before registration |
| Section 44(d) / 44(e) | Owners of a foreign application or registration | A foreign priority claim or a foreign registration |
| Section 66(a) | Applicants extending an international registration under the Madrid Protocol | Filed through the World Intellectual Property Organization, not directly with the USPTO |
This guide covers the two bases most U.S. businesses choose between: 1(a) and 1(b).
Section 1(a): use in commerce
A use-based application says the mark is already in use in commerce on all the goods or services you list. To claim Section 1(a), you must (TMEP §806.01(a)):
- Sign a verified statement that the mark is in use in commerce.
- Give the date of first use anywhere on or in connection with the goods or services.
- Give the date of first use in commerce.
- Submit one specimen per class showing how you actually use the mark.
What counts as "use in commerce"
The Trademark Act defines use in commerce as the bona fide use of a mark in the ordinary course of trade, not merely to reserve a right in it (15 U.S.C. §1127; TMEP §901). In practice:
- For goods, the mark must appear on the products, their packaging or labels, or a point-of-sale display such as a product page with a way to buy, and the goods must actually be sold or shipped in commerce.
- For services, the mark must be used or displayed in selling or advertising the services, and you must actually be providing the services. Advertising a service you don't yet offer doesn't count.
Two rules trip people up. First, a 1(a) claim must be true for every item you list as of the filing date. If you sell t-shirts today but only plan to sell hats, the hats can't be listed under 1(a). Second, the specimen has to show the mark as customers see it in the marketplace. A mockup, a digitally altered photo, or a page with no way to buy usually fails. Our guide to trademark specimen refusals covers the common problems.
Section 1(b): intent to use
An intent-to-use application lets you file before launch. Instead of dates and a specimen, you sign a verified statement that you have a bona fide intention to use the mark in commerce on the goods or services listed (TMEP §819.02(c)(ii)(A)).
"Bona fide" means real, concrete plans, not a hope of selling the name someday. Keep records that show your plans, such as a business plan, product development notes, supplier quotes, designs, or a launch budget. If your application is ever challenged, having no documents at all that show genuine plans is a serious weakness.
Why intent to use is valuable: your priority date
Once the mark registers, your filing date counts as "constructive use" of the mark nationwide. It gives you priority over anyone who starts using a similar mark, or files for one, after that date, with limited exceptions such as earlier users and earlier filers (TMEP §201.02). That's the main reason to file on intent to use instead of waiting until launch. A competitor who adopts a similar name during your product development generally can't jump ahead of you.
What happens after you file under 1(b)
An intent-to-use application goes through the same examination as a use-based one. The extra steps come at the end:
- Examination and publication. The examining attorney reviews the application, and if it's approved, the mark is published for opposition.
- Notice of Allowance. If no one opposes, the USPTO issues a Notice of Allowance, typically about eight weeks after publication. This means the mark is allowed. It is not registered yet.
- Statement of Use. You have six months from the Notice of Allowance to file a Statement of Use, with a specimen and dates of use, proving the mark is now in use (TMEP §1109.04).
- Extensions if you haven't launched. If you're not using the mark yet, you can request six-month extensions. The first needs no explanation beyond a statement of continued intent. You can request up to four more, and each needs a showing of good cause, such as ongoing product development or efforts to launch. The total can't go past 36 months from the Notice of Allowance (TMEP §1108).
- Registration. Once the Statement of Use is accepted, the mark registers. Registration typically follows in 3–5 months.
If you start using the mark before the examining attorney approves it for publication, you can file an Amendment to Allege Use and skip the Notice of Allowance stage. There's a "blackout period" between approval for publication and the Notice of Allowance when you can't file either one (TMEP §1104.03(b)). During that window you simply wait for the Notice of Allowance.
Miss the Statement of Use or extension deadline and the application is abandoned. You can usually ask the USPTO to revive it within two months of the notice of abandonment, but that costs extra and isn't guaranteed.
1(a) vs 1(b) side by side
| Use in commerce, Section 1(a) | Intent to use, Section 1(b) | |
|---|---|---|
| Mark already in use? | Yes, on everything listed | No, or not on everything listed |
| Specimen at filing | Yes, one per class | No |
| Dates of first use at filing | Yes | No (given later in the Statement of Use) |
| Notice of Allowance stage | No | Yes |
| Statement of Use needed | No | Yes, within 6 months of the Notice of Allowance, extendable to 36 months |
| Extra USPTO fees after filing | None for the basis itself | $150 per class for the Statement of Use, plus $125 per class for each six-month extension |
| Typical time to registration | Shorter | Longer: adds the Notice of Allowance and Statement of Use stages, then typically 3–5 months after the Statement of Use is accepted |
| Priority date | Filing date (and you may also rely on your earlier actual use) | Filing date, once the mark registers |
| Can you sell or assign the application? | Yes | Only together with the business it belongs to, until you file proof of use (TMEP §501.01(a)) |
USPTO fees are from the USPTO fee schedule (effective January 19, 2025, last revised November 1, 2026). Check the current schedule before you pay, because fees can change.
For a stage-by-stage timeline with current USPTO wait times, see How long does it take to get a trademark?
Can you use both bases in one application?
Yes, for different goods or services. You can't claim both 1(a) and 1(b) for the same item (TMEP §806.02). A common setup is a clothing brand that already sells shirts (1(a)) and plans to add jackets (1(b)) in the same class. The application lists each item under the basis that fits.
You can also change the basis in many cases. If a 1(a) claim fails, for example because the specimen isn't acceptable or the mark wasn't really in use on the filing date, you can usually switch to 1(b) and keep your original filing date (TMEP §806.03(c)). Adding or substituting a basis is simplest before publication. After publication it takes a petition (TMEP §806.03(a)).
What each basis costs
USPTO fees (per class):
- Base application: $350 per class when you use pre-approved ID Manual descriptions. A custom, free-form description adds $200 per class, and leaving out required information adds $100 per class.
- Statement of Use (1(b) only): $150 per class.
- Amendment to Allege Use (1(b) only, if filed before publication approval): $150 per class.
- Extension of time to file a Statement of Use (1(b) only): $125 per class, per extension.
Markavo flat fees (one class, ID Manual description):
| Path | Markavo legal fee | Government fees Markavo charges | All-in |
|---|---|---|---|
| 1(a) application, Basic plan | $99 | $450 | $549 |
| 1(b) application, Basic plan, then a Statement of Use at the first deadline | $99 + $125 | $450 + $150 | $824 |
| Amendment to Allege Use, if you start using the mark before publication approval | $125 | $150 | $275 |
| Each six-month extension, if you need one | $125 | $125 | $250 per extension |
If you start using the mark before the examining attorney approves the application for publication, an Amendment to Allege Use is $125 in legal fees plus the USPTO's $150 fee ($275 all-in), instead of a Statement of Use later. Markavo's $450 per-class government-fee line includes the USPTO's $350 base fee plus $100 for attorney time to draft your description from pre-approved ID Manual entries. The Standard ($149) and Attorney Plus ($399) plans add services such as a comprehensive search, see U.S. trademark plans. The full fee list is in Markavo's price list, and How much does a trademark cost in 2026? breaks down the total cost of a trademark.
How to choose your filing basis
| Your situation | Usually the best choice |
|---|---|
| You're already selling everything you want to list, and you have a real specimen | 1(a) |
| You've picked a name but haven't launched | 1(b), to lock in your filing date now |
| You sell some products now and plan to add others | Both: 1(a) for current items, 1(b) for planned ones |
| You've had a "soft launch" or a few test sales and aren't sure they count | Ask an attorney. If your use is doubtful, 1(b) is safer than a 1(a) claim that may fail |
| You may sell the brand or bring in a new owner before launch | Plan carefully. An intent-to-use application can only be transferred with the business it belongs to until you file proof of use |
| You're outside the U.S. and own a home-country registration | Section 44(e) may be an option, but you'll still need a U.S.-licensed attorney. See Can non-U.S. citizens register trademarks in the U.S.? |
Two rules of thumb:
- Don't claim use you don't have. A 1(a) claim for goods or services you aren't selling yet can fail, and a registration based on a false use claim is open to challenge later.
- Don't wait to file just because you haven't launched. Every month you wait is a month someone else can file first. Search first, then file on intent to use if the name is clear.
Before you file: search first
Neither filing basis protects you from a conflict with a mark that's already registered or pending. A likelihood-of-confusion refusal costs time and money whichever basis you choose. Start with our free trademark search, where an attorney checks for identical and nearly identical marks in your main class, and read our USPTO trademark search guide.
After you file, you can follow your application in the USPTO's TSDR status system. Our TSDR guide explains how to read it. When the Notice of Allowance arrives, our Statement of Use guide shows what evidence you'll need.
Frequently asked questions
What is an intent-to-use trademark application?
It's a U.S. trademark application filed under Section 1(b) before you've started using the mark. You swear you have a genuine intention to use it, and you prove actual use later with a Statement of Use before the mark can register.
What does a 1(a) filing basis mean?
Section 1(a) means the mark is already in use in commerce. You give your dates of first use and a specimen showing the mark on your goods or in advertising for your services when you file.
Which is better, intent to use or use in commerce?
Neither is better in general. If you're already using the mark on everything you list, 1(a) is usually faster and cheaper. If you haven't launched, 1(b) protects your filing date while you get ready.
How long does an intent-to-use trademark last?
After the Notice of Allowance, you have six months to file a Statement of Use. With all five six-month extensions, you can take up to 36 months from the Notice of Allowance. If you don't prove use by then, the application is abandoned.
How long does registration take after a Statement of Use?
Typically 3–5 months after the Statement of Use is accepted.
How much does an intent-to-use application cost?
The USPTO filing fee is the same as for a use-based application ($350 per class with ID Manual descriptions). You'll later pay $150 per class for the Statement of Use and $125 per class for any extension. With Markavo, one class costs $549 to file on the Basic plan, plus $275 for the Statement of Use ($125 legal fee plus the $150 USPTO fee).
Can I switch from intent to use to use in commerce?
Yes. Once you start using the mark, you file an Amendment to Allege Use (before the mark is approved for publication) or a Statement of Use (after the Notice of Allowance). An Amendment to Allege Use is $125 in legal fees plus the USPTO's $150 fee. If a 1(a) claim fails, you can usually switch to 1(b) and keep your filing date.
Does an intent-to-use application give me rights before I launch?
Your filing date becomes your nationwide priority date once the mark registers. Until then, you have a pending application, not a registration, so you can't enforce registration rights yet.
Get the filing basis right the first time
Choosing the wrong basis is one of the easiest ways to add months and fees to a trademark. Markavo's attorneys confirm whether your use qualifies, list each product under the right basis, and file in the USPTO's Trademark Center for a flat fee. If you file on intent to use, we can handle the Amendment to Allege Use, the Statement of Use, and any extensions too. Start your U.S. trademark application.
This article is general information, not legal advice for your specific situation.