When Should I Apply for a Trademark?

In Trademarks by Stacey Kalamaras

Any person interested in protecting their intellectual property should apply for a trademark as quickly as possible to ensure the maximum amount of legal protection. The trademark does not need to already be in use in interstate commerce or even have an online presence in order to file a trademark application. In fact, under the United States Patent and Trademark Office (USPTO) system, a trademark owner can apply for a trademark under an intent-to-use basis before any actual business has been conducted in association with the trademark. Waiting to apply for a trademark until you start using it can cause serious financial and legal difficulties for your business if you discover another entity using your trademark later. Applying for a trademark quickly can be to your advantage as a business owner and having an experienced intellectual property attorney help you through the process will ensure your legal rights remain protected.

Early Business Development Stage

If you are at an early business development stage in your business, you may not think that you have the legal right to apply for a trademark for your developing business. In some cases, businesses create a plan to produce a good or offer a service within the next year or two and will not actually sell anything through interstate commerce right away. However, the trademark application process is a long one. Once the application is filed, it takes some months for it to be examined and approved. If the trademark is filed on an intent-to-use basis, once it is approved, the trademark owner has 36 months from that time to prove evidence of use in interstate commerce. During that time, the trademark owner must file documents with the USPTO every six months to let the USPTO know it is still interested in its trademark. So long as the trademark owner ultimately demonstrates use, it will receive a trademark registration with a priority date dating back to the date the original date the application was filed.  This can be critical in any enforcement proceedings.

Advantages of Filing for A Trademark Early

There are many advantages of filing for federal trademark protection and doing so as early as possible. Some of these include the following:

  • Within days of filing, your trademark application will be listed and searchable in the USPTO database, giving constructive notice to any other business that may wish to use or adopt a similar trademark.
  • Once your trademark application is filed, it is eligible to be filed with the Amazon Brand Registry provided it meets the other requirements set forth by Amazon.
  • Trademark infringement happens when another party uses your trademark without permission in a way that is likely to cause consumer confusion for the same or related sale of goods and services. Filing for a trademark early may provide a business owner with senior rights to that trademark, depending on when the registration issues.
  • Filing for a trademark as soon as possible helps avoid the costs of proving your prior common law rights against someone who later file their trademark at the USPTO after you.
  • If an issue of trademark infringement occurs, having a registered trademark simplifies and expedites the entire legal process to defend your trademark.


Ultimately, applying and receiving approval for your trademark eliminates a great deal of costly and time-consuming legal challenges that may present themselves in the future if you ever encounter any instances of trademark infringement. If you need help with your trademark application or have questions, please contact us instead of taking matters into your own hands to ensure you understand how applying for a trademark as soon as possible will protect your business in your unique circumstances.