Every U.S. trademark application must include a filing basis. The filing basis tells the USPTO why you are entitled to apply for the trademark. Choosing the correct filing basis is important because it affects both the application process and when your trademark can be registered.

There are four principal filing bases.

1. Actual Use (Section 1(a))

If you are already using your trademark in U.S. interstate commerce, you can file based on Actual Use.

You will need to provide:

• the date you first used the trademark anywhere;
• the date you first used it in U.S. interstate commerce; and
• a specimen (proof showing how the trademark is actually used with your goods or services).

If the application is approved, your trademark can proceed directly to registration.

2. Intent to Use (Section 1(b))

If you have not yet started using your trademark in the United States but have a genuine intention to do so, you can file under Intent to Use.

This filing basis allows you to reserve your rights and secure an earlier filing date before launching your products or services.

However, your trademark cannot register until you:

• begin using the trademark in U.S. interstate commerce;
• file a Statement of Use with an acceptable specimen; and
• pay the applicable USPTO government fees.

For many businesses entering the U.S. market, this is the most common filing basis.

Intent to Use (Section 1(b)) is appropriate if you have not started using the trademark yet but have a genuine intention to do so in the near future. This allows you to secure an earlier filing date while you prepare to launch your business. However, your trademark will not register until you begin using it and file proof of use, called Statement of use, with the USPTO, together with the required government fees.

3. Foreign Application (Section 44(d))

If you filed a trademark application in another country within the last six months, you may be able to claim the filing date of that earlier application as your U.S. priority date.

This filing basis is available only if your country of origin is a party to a qualifying international treaty with the United States.

A Section 44(d) filing does not, by itself, result in a registration. Before your trademark can register, the application must ultimately rely on another filing basis.

For this reason, we generally recommend filing under both Section 44(d) and Section 1(b) (Intent to Use) whenever possible. This preserves your options and gives you greater

flexibility later in the application process.

4. Foreign Registration (Section 44(e))

If you already own a valid trademark registration in your country of origin, you may qualify to register your trademark in the United States under Section 44(e).

Generally, you must provide:

• a copy of your foreign registration (and an English translation if necessary); and
• evidence that the registration is valid and issued by your country of origin.

One of the major advantages of Section 44(e) is that you do not need to submit proof of use before your U.S. trademark registers.

However, after registration, you will still need to use the trademark in U.S. commerce in order to maintain your U.S. registration.

An important advantage for foreign applicants

Foreign applicants who qualify under Section 44(d) often enjoy greater flexibility than U.S. applicants.

By filing under both Section 44(d) and Section 1(b), you can decide later which path to registration is most advantageous:

• If your foreign registration issues first, you can amend your application to Section 44(e) and obtain registration without filing a Statement of Use or proof of use.
• If your foreign registration is delayed, you can instead proceed under Section 1(b) by filing a Statement of Use once you begin using your trademark in U.S. interstate commerce.

This flexibility allows many foreign applicants to choose the faster or more practical route as their application progresses.

Which filing basis is best?

The right filing basis depends on your individual circumstances, including whether you are already using your trademark, whether you have filed or registered your trademark in another country, and your future business plans.

When you instruct Trademark Angel to file a U.S. trademark application, we will review your situation and recommend the most appropriate filing strategy. Where available, we will help you take advantage of multiple filing bases to maximize flexibility and protect your rights.