Use in Commerce vs. Intent-to-Use
Section 1(a) says you are already using the mark in commerce today. Section 1(b) says you have a real intention to use it but nothing has shipped yet. Both are legitimate, and the one you pick changes your timeline, your total cost, and what happens after the application is approved.
The two bases in plain terms
Use in commerce, Section 1(a), is a statement that the mark is already on goods or in advertising for services that have crossed a line Congress regulates. Intent to use, Section 1(b), is a statement that you have a bona fide, documented plan to get there. Neither is better in the abstract; the honest answer for your business today is the right one, because the declaration is signed under penalty of losing the application.
Side by side
| Feature | Section 1(a), use in commerce | Section 1(b), intent to use |
|---|---|---|
| What you swear to | The mark is already in use in commerce for the goods or services listed | You have a bona fide, documented intention to use the mark in commerce |
| What you file with it | A specimen, plus the date of first use anywhere and the date of first use in commerce | No specimen at filing; the evidence comes later |
| What counts as commerce | Commerce the United States Congress can regulate: across state lines, or between the U.S. and another country. Purely local activity does not qualify. | The same standard, met before the mark can register |
| Filing cost in 2025 | $350 per class base fee | $350 per class base fee |
| What happens after approval | The mark publishes for opposition, then registers | A Notice of Allowance issues, then you must file a Statement of Use |
| Extra fees along the way | None if it registers cleanly | $150 per class for the Statement of Use, and $125 per class for each six-month extension of time |
| When your priority starts | From your first use date, reinforced by the filing date | From the filing date, but only once the mark registers and use begins |
| Biggest risk | Filing before real use and declaring a date you cannot prove | Never filing the Statement of Use, which abandons the application outright |
Approval is not registration. After a Notice of Allowance you have six months to file a Statement of Use at $150 per class, and you can buy up to five more six-month extensions at $125 per class each. Miss the last one and the application goes abandoned, with the $350 per class filing fee gone.
What counts as real use
- Goods: the mark appears on the product, its packaging, or a label or display associated with it, and the goods have actually moved in interstate commerce.
- Services: the mark appears in advertising or in rendering the services, and the services have actually been performed for customers across state lines.
- Software: users in more than one state have downloaded or accessed it. Simply publishing it on your own site does not create use.
- Not use: a mockup, a coming-soon landing page that only collects emails, internal documents, or a single token shipment arranged purely to manufacture a filing date.
How to choose
If you have already sold across state lines or delivered services to out-of-state clients, file Section 1(a) and put that earlier use date on the public record. If you have a name locked down, a launch date, and evidence of a real plan, file Section 1(b) to hold your place in line while you build. Filing 1(a) when nothing has shipped is a false declaration, and it is the fastest way to lose an application that would otherwise have registered.
Mixing bases across classes
You may file 1(a) for the classes where you have actually used the mark and 1(b) for classes you plan to enter, all in one application. You can also amend a 1(a) application down to 1(b) if examination drags on and use never happened, provided the allegation was not made in bad faith. You cannot simply convert 1(b) up to 1(a): once use begins before allowance you file an Amendment to Allege Use at $150 per class, and after allowance you file a Statement of Use instead.
Save dated invoices, shipping confirmations, screenshots with the URL and date visible, and ad spend reports. If your date of first use is ever challenged, or you need to prove a specimen was genuine, those three files are the entire argument.
Frequently asked questions
Can I start using the mark while a Section 1(b) application is pending?
Yes. If use begins before the application is approved, file an Amendment to Allege Use with a specimen for $150 per class. If it begins after the Notice of Allowance, file a Statement of Use instead, at the same fee.
What is the difference between an Amendment to Allege Use and a Statement of Use?
They do the same job at different moments. The Amendment is filed before the examining attorney approves the mark; the Statement is filed after the Notice of Allowance. Both cost $150 per class and both require a specimen.
How many extensions of time can I get on a Notice of Allowance?
Up to five six-month extensions, at $125 per class each, for a total of three years from the Notice of Allowance date. Each one needs a written request filed before the current deadline, and each must state ongoing good-faith intent.
Does one sale across a state line really count as use in commerce?
A single bona fide interstate sale in the ordinary course of business can support a use-based filing, but token shipments made only to create a filing date do not. The sale has to be a real transaction, documented, and of the kind you would repeat with customers.
Can I switch from Section 1(a) to 1(b) if my launch slips?
Yes, you can amend to 1(b) before the application is approved, as long as the original use claim was not false when made. If you already swore to a use date you cannot support, talk to a trademark attorney before doing anything else.
More in Trademark Basics
Applicant Eligibility
Who can file, and what counts as a valid filing basis. Foreign filers need a U.S. attorney.
Pre-Filing Checklist
Seven things to confirm before you submit your application.
Trademark Fundamentals
What counts as a trademark, and what rights registration actually gives you.
Trademark Glossary
Plain-English definitions for the terms on your TSDR status page.