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Bases for filing in the USA

When filing your trademark in the USA, you must to specify a basis for filing in your application. There are two main bases: "Actual Use" and "Intent-to-use" basis.

  1. If you already use your trademark in commerce in the USA on all the products in your application, you can file your trademark under the Actual Use basis. In this case, in addition to the information regarding the trademark and the trademark owner, you should provide the Specimen of use and the date of your first sale in the USA and in the world. The Specimen of use can be a photo of your product with your trademark on it, the packaging of your products, a screenshot from a website where you sell your products, which show that you use your trademark in association with the products/services listed in the application.

  2. If you didn’t start selling your products in the USA then you should apply under the Intent-to-use basis. In this case, you are not required to provide a Specimen of use and the dates of first sale at the moment of filing your mark. However, once your trademark is accepted to registration (6-9 months from the filing date approximately), the Office issue a Notice of Allowance which means the beginning of the 6-months period when you should submit those documents and pay required fees for filing an additional form.

 3. For the applicants who have an already registered their trademark outside the USA, there is one more way to get the trademark registered in the county – file the trademark under the Foreign Registration basis. All you need is to provide the certificate of registration of your trademark and file the same trademark in the USA. There is no additional fee for this. However, there are also some pitfalls:

The base trademark should be registered in the country of your citizenship or incorporation of your company.

The list of products/services should not go over the range of products/services in the foreign registration.

Nevertheless, it may be a good variant for those who didn’t start selling their products in the USA and are not ready to pay extra charges associated with Intent-to-use basis.

Choose the better option for you and let’s get your trademark with!


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