What Is the Use Requirement for Trademarks in the USA?

If you’re eyeing a trademark in the USA, you might’ve heard about the “use requirement.” It’s a big deal with the U.S. Patent and Trademark Office (USPTO), and it can trip up even the savviest entrepreneurs. At La Défense, we’ve helped countless clients nail this step, and we’re here to break it down for you—simple, clear, and straight to the point. So, what’s this use requirement all about? Let’s dive in!

Why “Use” Matters in the USA

Unlike some countries where you can just claim a trademark and sit on it, the USA says, “Show me you’re using it!” Why? Trademarks here are all about protecting brands actively in the marketplace—not hoarding cool names. The use requirement proves your mark (like a logo, name, or slogan) is tied to real goods or services. No use, no protection. Harsh, but fair.

Two Ways to Meet the Use Requirement

When you file with the USPTO, you’ve got two paths: “use in commerce” or “intent-to-use.” Both come with rules. Here’s the rundown.

Use in Commerce: Show It Now

Filing under “use in commerce” means your brand’s already out there. You’re selling products or offering services with that trademark slapped on—like a T-shirt with your logo or a website promoting your app. The catch? It’s got to be interstate commerce—crossing state lines or affecting national trade. Selling cookies at a local fair might not cut it, but shipping them to another state does.

You’ll submit:

– A specimen: Proof your mark’s in action (e.g., a product label, ad, or website screenshot).

– The date of first use: When you started using it commercially.

Nail this, and you’re on track for registration in 9–12 months (more on timing in our other posts!).

Intent-to-Use: Promise It Later

Not ready yet? File under “intent-to-use” (ITU) with a genuine plan to use your mark soon. You don’t need proof upfront—just a solid intention. But here’s the twist: you must start using it before the USPTO grants your trademark. After your application’s approved (post-review and publication), you’ll file a Statement of Use (SOU) with:

– A specimen (same as above).

– A fee of $150 per class (a “class” is a category like clothing or software).

Can’t start yet? Request extensions—$125 per class every 6 months, up to 5 times (3 years max). Miss the deadline, and your application’s toast.

What Counts as “Use”?

The USPTO’s picky about what qualifies. It’s not enough to just slap your logo on a napkin. Here’s what works:

For Goods (Products)

– Labels, tags, or packaging showing the mark.

– Online product listings (e.g., your Etsy shop) with the mark visible.

For Services

– Ads, brochures, or a website offering the service with your mark.

– Business signage or invoices linking the mark to what you do.

Random mentions or internal docs? Nope—they don’t count. It’s got to be public and tied to sales.

Why It’s Tricky

This use stuff trips people up. Common pitfalls:

– Token use: Using it just to file (like selling one T-shirt to a friend) can get rejected.

– Wrong specimen: A blurry photo or unrelated ad won’t fly.

– Timing: Waiting too long on an ITU filing kills your shot.

At La Défense, we’ve seen it all—and we know how to dodge these headaches.

Keeping It Alive: Use It or Lose It

Even after registration, the use requirement sticks around. Between years 5–6, you’ll file a Section 8 Declaration (costing $325 per class) proving you’re still using the mark. Skip it, and your trademark’s canceled. Every 10 years, you renew (another $325 per class) with more proof. It’s a commitment—your brand’s got to stay active.

State Trademarks: A Looser Rule?

State trademarks (covering just one state) often have lighter use rules—sometimes just local sales count. But they’re weaker than federal protection. For big plans, the USPTO’s the gold standard, use requirement and all.

Why Bother?

Meeting the use requirement locks in your rights nationwide. It stops copycats, builds credibility, and boosts your brand’s value. Skip it, and someone else could swoop in. Timing’s everything—file smart, use it right, and you’re golden.

Need Help Nailing It?

The use requirement’s a must for trademarks in the USA—whether it’s showing use now or promising it later. It’s not rocket science, but it’s easy to stumble. At La Défense, we’re experts at getting this right—specimens, timing, the works. Want your trademark fast and fuss-free? Reach out today—we’ll guide you every step of the way. Your brand’s too good to leave unprotected!

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