Understanding Trademark Filing Bases in the U.S.

Introduction

Securing U.S. trademark registration is essential for protecting your brand’s identity and financial interests. When filing a trademark application with the United States Patent and Trademark Office (USPTO), it is important to understand and meet all applicable requirements. One of the most critical steps in the process is selecting the correct trademark filing basis. With multiple filing bases available, applicants must satisfy the statutory requirements of at least one to successfully register a trademark. The experts at Auriga Accounting pvt. ltd. can guide you in choosing the appropriate filing basis and help ensure a smooth and compliant trademark registration process.

What Is a Trademark Filing Basis in the U.S.?

In the United States, a trademark filing basis is the legal ground an applicant relies on when submitting a trademark application to the United States Patent and Trademark Office (USPTO). It explains why you are entitled to register the trademark and identifies whether the mark is already in use or will be used in the future.

The filing basis determines the legal framework under which the USPTO evaluates your application and confirms whether the mark qualifies for federal trademark registration. Each filing basis has specific statutory requirements that must be met before the application can proceed toward registration.

Types of Trademark Filing Bases in the U.S.

Under the U.S. Trademark Act, applicants may choose from four primary filing bases, depending on how and where the trademark is used or intended to be used:

1. Trademark Act Section 1(a): Use in Commerce

This basis applies when the trademark is already being used in commerce regulated by the U.S. Congress—typically interstate or international commerce—at the time of filing. Applicants must submit evidence demonstrating actual use of the mark in connection with the listed goods or services.

2. Trademark Act Section 1(b): Intent-to-Use

This option is available if the trademark is not yet in use, but the applicant has a genuine, good-faith intention to use it in commerce in the near future. Registration is granted only after proof of use is submitted.

3. Trademark Act Section 44(e): Foreign Registration

Applicants who already hold a valid trademark registration in their country of origin may rely on that registration to file in the U.S., provided the goods or services are the same.

4. Trademark Act Section 44(d): Foreign Application (Priority Filing)

Also known as the foreign priority basis, this allows applicants to claim the filing date of a foreign trademark application filed within the previous six months, giving priority over later-filed U.S. applications for the same mark.

Important Note: Filing bases are different from registration bases. The USPTO ultimately registers trademarks based on either use in commerce or foreign registration, and at least one of these must be satisfied for registration to issue.

Requirements for Trademark Filing Bases

Selecting the correct filing basis is critical. Each basis has distinct requirements, though most U.S. applicants file under either use in commerce or intent to use.

“Use in Commerce” Filing Basis Requirements

To qualify under this basis, the trademark must have been actively used in commerce on or before the filing date. The USPTO requires:

Proof of Use: Evidence showing the mark used in the normal course of trade on goods or in advertising services across state or international lines
Dates of Use:
- Date of first use anywhere
- Date of first use in interstate or international commerce
Specimen Submission: At least one specimen per class, such as product labels, packaging, website screenshots, or advertisements clearly displaying the mark
Statement of Use: A declaration confirming the specimen was in use as of the filing date
Verification: A signed affidavit or declaration attesting to the accuracy of all claims

Accurate documentation is essential to avoid refusals or delays.

“Intent-to-Use” Filing Basis Requirements

This basis is ideal for businesses planning to launch a new product or service.

Affidavit of Bona Fide Intent: A sworn statement confirming a genuine intention to use the mark in commerce
Timing Requirement: The intent must exist at the time of filing
Conversion to Use: Registration cannot be completed until the mark is actually used in commerce
Statement of Use (SOU): Must be filed after use begins, along with specimens and applicable fees
Verification: A declaration confirming the truthfulness of the intent and subsequent use

Extensions are available if additional time is needed to begin use.

Filing on a Foreign Registration Basis (Section 44(e))

This basis allows applicants to rely on an existing foreign trademark registration.

Requirements include:

Certified Copy of Foreign Registration
English Translation, if the registration is not in English
Matching Goods or Services listed in both registrations
Valid Foreign Registration: The foreign registration must remain active until the U.S. registration is granted

Filing on a Foreign Application (Priority) Basis (Section 44(d))

This basis provides a strategic advantage by allowing applicants to claim priority from a foreign application.

Key requirements include:

Priority Claim Within Six Months of the foreign filing date
Foreign Application Details: Country, application number, and filing date
Goods or Services Listing consistent with the foreign application
Treaty Membership: The foreign country must be part of an applicable international treaty
Affidavit of Bona Fide Intent to use the mark in U.S. commerce

Can You Use Multiple Filing Bases?

Yes, applicants may rely on multiple filing bases, provided they follow these rules:

No Dual Claims for the Same Goods or Services: You cannot claim both current use and intent to use for the same items
Clear Classification: Each good or service must be clearly matched with the appropriate basis
Strategic Advantage: This is useful if some goods are already in use while others are planned for future launch

How to Choose the Right Trademark Filing Basis

Here’s a simplified way to decide:

Already using the mark? Choose Use in Commerce
Planning to use it soon? Choose Intent-to-Use
Registered abroad? Consider Foreign Registration
Recently filed abroad (within 6 months)? Use Foreign Application Priority

Your choice should align with your current operations and future business plans. When uncertain, professional guidance can help avoid costly mistakes.

Auriga Accounting pvt. ltd. experts can assist you in selecting the most suitable trademark filing basis and ensure your U.S. trademark application is accurate, compliant, and strategically sound.

About the Author

Dakesh

Dakesh simplifies complex legal regulations into practical, easy-to-understand guidance, helping entrepreneurs remain compliant while building sustainable, scalable businesses with confidence.

January 8, 2026