Note: Assistance with the verification of use process is included in the flat-fee intent-to-use USPTOtrademark registration package.
Intent-to-use applications allow businesses to secure rights to a trademark before they are ready to use it in commerce. This system encourages businesses to invest in their brands prior to actual use, but presents a risk of parties attempting to reserve trademarks without a legitimate business purpose. To prevent such speculative trademark registrations, the USPTO requires applicants to submit verification of actual use before granting a registration.
Use is verified to the USPTO by submitting a formal statement alleging that the trademark is actively being used in commerce with the goods and/or services in the application. This is done by filing a Statement of Use or an Amendment to Allege Use, depending on the stage of the application.
Regardless of which type of submission is used, it must include the following:
Verification of use can be submitted at different stages depending on when the applicant begins using the trademark in commerce.
Prior to the Notice of Publication:
Before the Notice of Publication is issued, an applicant may file an Amendment to Allege Use if they have begun using the trademark in commerce. If the amendment is accepted and the trademark is unopposed, the application can proceed directly to registration without requiring a later Statement of Use.
The exact date of the Notice of Publication is unknown to the applicant, but key milestones can help to estimate when it will occur. First, it will not be issued until the examining attorney reviews the application, which, as of March 2025, typically takes about six months. You can check the current processing times here. Additionally, if an office action is issued, the Notice of Publication will be delayed until the issue is resolved. Applicants generally have three months to respond to an office action, with the option to request a three-month extension.
Between the Notice of Publication and the Notice of Allowance:
During this period, known as the blackout period, an applicant cannot submit any filing verifying use. Applicants should carefully plan their filings to avoid delays caused by this limitation.
After the Notice of Allowance:
Once a Notice of Allowance is issued, the applicant has six months to file a Statement of Use or request an extension. If the applicant is not yet using the mark, they may file for up to five six-month extensions, giving them a maximum of three years from the Notice of Allowance date to submit proof of use. Failure to file a timely SOU or extension will result in the application being abandoned.
Using a trademark in commerce means actively selling goods or services under the trademark in a way that directly affects interstate or international trade. For goods, this typically requires the trademark to be placed on the product, packaging, or labels and for the product to be sold or transported across state lines. For services, the trademark must be used in advertising or promotional materials and in connection with providing the service to customers in multiple states or countries. Mere intent to use a trademark or token sales without real commercial activity do not qualify as use in commerce.
If an applicant includes goods and / or services in the verification statement that the trademark has not yet been used with in commerce, the registration could later be challenged and potentially canceled for fraud. To avoid this issue, applicants should carefully review their verification statement and ensure that all listed goods and services are actively being sold or provided under the mark at the time of filing.
If an applicant wants to proceed with only those goods and/or services that are actually in use in commerce, this can be achieved by either amending the application to delete the unused goods and/or services or by dividing the application so that only the good and/or services actually in use in commerce remain.
The specimen must adequately demonstrate use of the mark in commerce. The USPTO requires that a specimen show the mark as it is used in the ordinary course of trade, not just an artistic rendering or mock up. For goods, acceptable specimens include labels, tags, packaging, or the product itself with the mark displayed. For services, website screenshots, advertisements, or promotional materials showing the mark being used to identify the services may be sufficient.
For more information on specimens, visit the USPTO website page on specimens.
Failing to meet deadlines for filing a Statement of Use or requesting an extension can result in the application being abandoned. If an applicant is not yet using the mark in commerce and anticipates needing more time, it is recommended to request an extension well before the deadline to avoid last-minute complications. The USPTO allows up to five six-month extensions, and filing early ensures that unforeseen delays do not jeopardize the application. If an applicant misses the deadline entirely, they may be required to restart the application process from the beginning.
