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When should you file a trademark—before you launch your business, right after, or once you have started building momentum? The answer is not necessarily the same for everyone. The timing of your application can shape how well your brand is protected, how much you will spend, and how smoothly you may be able to expand into new markets. Filing too soon may create unnecessary costs, while waiting too long could leave the door open for competitors. Understanding your options helps you strike the right balance between protection and practicality.
Intent-to-Use vs. Use-Based Filings
When applying for a trademark at the United States Patent and Trademark Office (USPTO), you will need to choose between two main filing types:
- Use-Based Application: For businesses already using the mark in commerce. You will need to submit proof of use, such as photos of product labels, screenshots of websites, or copies of brochures or signage showing the mark in connection with your goods or services.
- Intent-to-Use Application (ITU): For businesses planning to launch soon but not yet selling under the mark. This secures your rights now and lets you submit proof of use later through a Statement of Use.
Cost Comparison Example
- Use-Based: You pay one filing fee per class of goods or services, and if approved, the mark is registered.
- Intent-to-Use: You pay the same initial filing fee per class of goods or services, but later must file a Statement of Use and possibly extension requests (with additional fees for each). Over time, this path costs more, but it locks in priority with the USPTO before you launch.
Examples: A Texas tech startup planning a software app launch in nine months may choose an ITU application to hold their place at the USPTO while they finish development. A local restaurant already operating under its brand, by contrast, would likely file use-based immediately.
Aligning Filing with Your Business Launch
The question of when to file is often as important as what to file.
- Filing too early: If you file an intent-to-use application but delay your launch by several years, you may face repeated extension fees or risk your application expiring.
- Filing too late: If you wait until after your launch, another party could file a trademark application first, forcing you into expensive disputes, or worse, a rebrand.
Timeline Example
- 6–12 months before launch: Consider filing an intent-to-use application for a mark that you have a bona fide intent to use in order to secure rights in advance.
- At launch: If your business is ready, file a use-based application to avoid added costs.
- Approximately 1 year post-launch: Convert your ITU to use-based by filing your Statement of Use, keeping your USPTO priority date intact.
For many businesses, combining legal strategy with business planning avoids costly delays and disputes.
International Considerations
If your brand might expand globally, timing matters even more. The U.S. participates in the Madrid Protocol, which allows you to extend your U.S. application into other designated countries. Your original U.S. filing date can serve as your “priority date” abroad, which may give you an edge if a competitor tries to register the same or a similar mark in another country.
There are specific timelines for filing requirements to preserve your U.S. priority date under the Madrid Protocol. Consider consulting with a trademark law attorney to avoid missteps.
Delaying international filings can leave the door open for overseas businesses to secure your brand name or logo first. Reclaiming rights internationally is often far more expensive than filing strategically at the start.
Risks of Waiting Too Long
Many business owners assume they can “wait and see” before filing. But delays often carry more risks than benefits:
- Another company could register the mark first.
- You might face infringement disputes if your brand conflicts with an earlier filer.
- Rebranding costs can mount quickly, including new signage, packaging, marketing campaigns, and websites.
- Investors, partners, or buyers may hesitate if your trademark status is uncertain.
In short, waiting too long can put your brand equity and growth plans at risk.
FAQ: Common Questions About Trademark Timing
How long can an intent-to-use application remain pending?
Up to three years by filing periodic six-month extensions. You must show use in commerce within that window or risk losing the application.
What if I file an intent-to-use but start selling earlier than expected?
You can convert your application to use-based and submit proof once you begin selling the goods and services that you use the trademark for.
Can I reserve a trademark internationally before I launch in the U.S.?
You generally need a U.S. application first, which may then be extended internationally under the Madrid Protocol.
Is it cheaper to wait until I launch before filing?
Not necessarily. While you may save some fees upfront, waiting can increase long-term costs if someone else files first or if you face rebranding.
Take the Next Step Toward Securing Your Trademark
Your brand is one of your most valuable assets. Choosing the right timing strategy for your trademark filing may save you money, protect you from disputes, and position your business for expansion. At the Kumar Law Firm PLLC, we work with Texas entrepreneurs and business owners to identify filing strategies that fit their launch plans and long-term goals.
Contact us today to schedule a consultation and get started planning the right timing strategy for your trademark.