Excusable Non-Use of a TM: What to Know When Govt. Approval Delays Commercial Use
Trademark owners are generally required to use their marks in commerce to maintain their federal registration. However, US trademark law recognizes that certain circumstances can delay use, without penalizing the owner or resulting in abandonment. One of the most common and accepted scenarios is waiting for government regulatory approval—a delay that, when properly documented and justified, may qualify as excusable non-use under Section 8 of the Lanham Act. Below, we break down how trademark owners can protect their rights while navigating regulatory delays or other exceptional circumstances. Regulatory Approval as Excusable Non-Use If the use of a trademark is delayed… [read more]
Supplemental Register: Trademark Protection for Descriptive and Developing Marks
Not all trademarks are immediately eligible for full federal protection on the US Principal Register. For marks that are descriptive, non-distinctive, or otherwise lacking in acquired consumer recognition, the Supplemental Register offers an alternative path to limited federal rights—one that can serve as a strategic foundation while the brand builds distinctiveness. Here’s what brand owners, startups, and trademark professionals need to know about the Supplemental Register and when it may be a useful tool in your trademark portfolio strategy. What Is the Supplemental Register? The Supplemental Register is a secondary registry maintained by the United States Patent and Trademark Office… [read more]
The Value of Intent to Use
There are some good reasons to file a trademark application based on the Intent to Use a mark in commerce. Even if you’re not using the mark yet, once the application registers, your priority date will be the filing date of your application — not the date that you first start using it. So, if you file today based on the intent to use, but you don’t use the mark until next year, your priority date would be the filing date. If there were no Intent to Use application and you started using the mark the next year, your priority… [read more]
Money, Intent to Use, Statements of Use, and Trademark Applications
I had a client recently reach out about issues with investing in packaging and materials before knowing if the mark for the product itself might be deemed confusingly similar with another mark on the United States Patent and Trademark Office (USPTO) register. For a variety of reasons, there’s a real advantage to knowing your mark has cleared an Examining Attorney before investing heavily in a brand. And one of the ways to avoid that issue is to file for protection based on the bona fide Intent to Use a mark in commerce. When you file based on Intent to Use,… [read more]
Getting Your Trademark Filed: Intent-to-Use vs. Actual Use
If you’re doing business in the US and want to acquire a trademark registration, there are two main types of applications that you can file. Use-based application: A use-based application is appropriate when you are already using the mark in commerce. The process includes (1) filing an application that states the date that you first used it in commerce and (2) providing an example of that use. This shows the United States Patent and Trademark Office (USPTO) that you deserve registered trademark protection. Intent-to-use application: The other type of trademark application deals with intending to release a product or service… [read more]
