Intent-to-Use Trademark Applications: The Pre-Launch Filing Strategy Every Startup Must Get Right

You have the name. You have the domain. You might even have a logo. What you do not have yet is a customer — at least not one outside your founding team. Under U.S. trademark law, that distinction matters more than most founders realize. The Lanham Act requires that a trademark be used in commerce before it can be registered, which creates an obvious problem for pre-launch startups: how do you lock in your brand before someone else claims it?

The answer is an intent-to-use trademark application filed under Section 1(b) of the Lanham Act. This filing basis lets you establish a priority date with the USPTO before you have made a single sale — as long as you have a bona fide intention to use the mark in commerce in the near future. It is one of the most strategically valuable tools in the trademark system for startups, but it comes with a multi-stage lifecycle, hard deadlines, and — after the 2025 USPTO fee changes that took effect January 18, 2025 — higher costs at every stage than founders faced a year ago.

In this guide, we walk through the full ITU lifecycle: when to file ITU versus use-in-commerce, the extension deadline structure, what a Statement of Use actually requires, acceptable specimens for SaaS and software products, and how the 2025 fee increases changed the economics of the ITU strategy. If you are new to trademark strategy more broadly, start with our overview of why modern businesses need a deliberate trademark and brand protection strategy — then come back here for the pre-launch filing layer.

What Is an Intent-to-Use (Section 1(b)) Trademark Application?

Every trademark application must specify a filing basis — the legal grounds under which you are entitled to register. The two most common bases are Section 1(a), use in commerce, and Section 1(b), intent to use. As the USPTO's ITU guidance explains, "If you haven't used your mark in commerce yet, but have a good faith intention to do so in the future, you can file an application to register your trademark or service mark with an intent-to-use (ITU) filing basis."

The core advantage is priority. Filing an ITU application establishes your application date — and that date determines your priority over anyone who files later or begins using the same or a confusingly similar mark after your filing date. In a first-to-file system like the U.S. trademark register, that priority can be the difference between owning your brand and having to rebrand. The USPTO notes that filing ITU "means you can get an earlier application filing date than a possible competitor," which "could mean your mark has priority over someone else's if a legal conflict develops or could develop."

But ITU is not a shortcut to registration. It is a reservation system with a timer. You file first, the USPTO examines your application, and if it survives examination and publication, you receive a Notice of Allowance — not a registration certificate. To get the registration, you must later prove that you have actually started using the mark in commerce by filing a Statement of Use with acceptable specimens. And every step in that process now costs more than it did before January 2025.

ITU vs. Use-in-Commerce: Which Basis Is Right for Your Startup?

The choice between Section 1(a) and Section 1(b) comes down to one question: are you already selling your product or service across state lines, or are you not?

Section 1(a) — Use in Commerce: You are already using the mark in interstate commerce with your goods or services. You submit a specimen showing real-world use and the date of first use at the time of filing. If your application clears examination and publication, the mark registers.

Section 1(b) — Intent to Use: You have a bona fide intention to use the mark in commerce but have not yet launched. You do not submit a specimen at filing. You file the Statement of Use later — with a $150 per-class USPTO fee under the 2025 fee schedule — after the USPTO issues a Notice of Allowance.

The mistake we see most often — and one we flagged in our guide to 7 trademark application mistakes that trigger USPTO office actions — is founders who have not yet launched selecting Section 1(a) because they think it will be faster, then being unable to produce a valid specimen because they are not actually selling. The examining attorney issues an office action requiring either a proper specimen or a switch to Section 1(b), costing time and money. The reverse mistake — filing 1(b) when you are already selling — adds unnecessary Statement of Use fees and months of delay.

If you are in a gray area — for example, you have a landing page accepting pre-orders but have not shipped product — talk to counsel before choosing. The filing basis you select on day one shapes the entire prosecution timeline and cost structure.

The ITU Timeline: From Filing to Registration

The ITU lifecycle has more stages than a use-based application. Understanding the full sequence is essential for budgeting and planning.

1. Filing: You submit the application with the $350 per-class filing fee (under the 2025 USPTO fee schedule), selecting Section 1(b) as the filing basis. No specimen is required at this stage.
2. Examination: A USPTO examining attorney reviews the application for compliance — distinctiveness, likelihood of confusion, proper identification of goods and services. If issues are found, an office action is issued with a six-month response deadline.
3. Publication: If the examining attorney approves the application, it publishes in the Trademark Official Gazette for a 30-day opposition period. Any party who believes they would be harmed can file an opposition with the TTAB.
4. Notice of Allowance: If no opposition is filed (or any opposition is resolved in your favor), the USPTO issues a Notice of Allowance. This is a milestone, not a registration — but it means your mark has survived examination.
5. Statement of Use: You must file a Statement of Use with a specimen showing actual use of the mark in commerce, along with the $150 per-class USPTO fee, within six months of the Notice of Allowance date.
6. Registration: Once the USPTO accepts your Statement of Use, the mark registers. You receive a registration certificate and full trademark protection retroactive to your original filing date.

Notice of Allowance — Not a Registration

This is the distinction that trips up the most founders. A Notice of Allowance is the USPTO's confirmation that your application has cleared examination and publication and is "allowed" — but it is not a registration. Under Section 1(b), the mark cannot register until you prove actual use in commerce. The Notice of Allowance triggers the clock: you have six months from the date it issues to file your Statement of Use or request an extension of time. If you miss that deadline without filing an extension, your application is abandoned, and your filing fee is non-refundable.

The practical implication: the Notice of Allowance is your reminder that the clock is ticking. If your product launch has slipped, this is the moment to either accelerate your go-to-market timeline or file an extension request.

Statement of Use — Proving You're Real

The Statement of Use is where the ITU process meets reality. You must demonstrate that you are actually using the mark in commerce — not testing, not in private beta, not "coming soon." The USPTO requires a specimen showing the mark as consumers actually encounter it in the marketplace, along with the date of first use in commerce and the date of first use anywhere.

The USPTO's ITU forms page provides the Statement of Use form, but the critical question is whether your specimen will survive examination. Specimen refusals are among the most common office action triggers in the ITU context — and they are entirely preventable if you understand what the USPTO accepts before you file.

Extension Requests: Buying Time Before Launch

If you receive a Notice of Allowance but are not yet ready to file a Statement of Use — because your product is still in development, your SaaS platform is in private beta, or your go-to-market timeline has slipped — you are not out of options. The USPTO allows you to request extensions of time to file your Statement of Use.

Here is how the extension structure works:

• Initial deadline: Six months from the Notice of Allowance date to file the Statement of Use.
• Extension requests: You can request up to five additional six-month extensions, for a total of 36 months from the Notice of Allowance date to file your Statement of Use.
• Cost: Each extension request costs $125 per class under the 2025 fee schedule (this fee was unchanged from the prior schedule, as confirmed by practitioner summaries of the 2025 fee rule).

That means a startup filing in three classes that needs the full 36 months would pay $125 × 3 classes × 5 extensions = $1,875 in extension fees alone — on top of the $350 × 3 = $1,050 filing fee and the $150 × 3 = $450 Statement of Use fee. Total government fees for that scenario: $3,375, before any attorney fees.

The extension request requires a verified statement that you still have a bona fide intention to use the mark in commerce and that you have not yet done so. You must file each extension request before the current deadline expires — there is no grace period. Missing the deadline means automatic abandonment of your application, and the only remedy is a Petition to Revive, which now costs $250 (up from $150 under the old fee schedule) and is not guaranteed to be granted.

Acceptable Specimens for Pre-Launch and SaaS Products

The Statement of Use specimen is the make-or-break document in the ITU process. According to USPTO specimen guidance, a specimen is "real-world evidence showing how consumers encounter your mark in the marketplace." The specimen must show the mark used in connection with the specific goods or services identified in your application.

For goods (Class 9 downloadable software, Class 25 apparel, etc.), acceptable specimens include:

• Labels, tags, or packaging showing the mark on the product
• A photograph of the product itself bearing the mark
• A screenshot of a webpage where the product can actually be purchased, showing the mark, the product, and a working buy or add-to-cart button

For services (Class 42 SaaS, Class 35 consulting, etc.), acceptable specimens include:

• A screenshot of your live website or application showing the mark displayed in connection with the service offered
• Advertising materials, brochures, or marketing pages that show the mark and describe the service
• Screenshots of the SaaS platform itself showing the mark in the user interface, with the service accessible to customers

The most common specimen refusals for software startups are:

• Mockups or concept designs instead of real screenshots of a live product. The USPTO wants to see the mark as consumers actually encounter it, not a Photoshop mockup.
• Landing pages without purchase capability — a page that describes the product but does not allow ordering does not qualify as a specimen for goods. For SaaS, a page that merely announces "coming soon" without a functional sign-up or login is also likely to be refused.
• Specimens that do not show the mark as filed — the submitted image must clearly display the exact mark as filed in the application. If you filed a standard character mark, the specimen must show the word(s) in a legible form. If you filed a design mark, the specimen must show that exact design.

For SaaS startups, the safest specimen is a screenshot of your live application showing the mark in the header or navigation bar, with the service interface visible and functional. If your application is behind a login, a screenshot of the login page showing the mark alongside the service description may suffice — but the more evidence of actual commercial use you can provide, the better your chances of avoiding a specimen refusal.

The 2025 USPTO Fee Changes: What They Mean for ITU Strategy

The USPTO's 2025 fee rule, effective January 18, 2025, adjusted 28 trademark fees — and several of the increases hit directly in the ITU lifecycle. The USPTO announced that the adjustments were "necessary to provide Trademarks with sufficient resources to administer the U.S. trademark system." For startups, those resources come out of your budget.

Here is how the key ITU-related fees changed:

The Statement of Use fee increase from $100 to $150 per class is the most consequential change for ITU applicants. For a startup filing in three classes, the SOU fee went from $300 to $450 — a 50% increase. That may not sound like much in isolation, but it compounds with the other costs in the ITU lifecycle.

Consider the full cost of an ITU application in three classes under the 2025 fee schedule, assuming the startup needs two extension requests before filing the Statement of Use:

• Application filing: $350 × 3 = $1,050
• Extension request #1: $125 × 3 = $375
• Extension request #2: $125 × 3 = $375
• Statement of Use: $150 × 3 = $450
• Total USPTO fees: $2,250 (before attorney fees)

Under the old fee schedule (TEAS Plus filing at $250/class and SOU at $100/class), the same scenario would have cost $1,650 — meaning the 2025 changes added $600 to the ITU lifecycle for a three-class application, a 36% increase in total government fees.

The strategic implication: the 2025 fee increases make it more financially consequential to get the filing basis right the first time and to manage the extension timeline carefully. Filing ITU when you are close to launching — and then needing only one extension or none — is significantly cheaper than filing ITU when your launch is 18 months away and burning through three or four extension cycles. If you expect your product launch to slip, budget for the extension fees upfront rather than treating them as unexpected costs.

Actionable Next Steps

If you are a founder preparing to file a trademark application before launch, here is what we recommend:

1. Determine your filing basis honestly. If you have made a bona fide sale to an out-of-state customer, Section 1(a) may be available and will save you the Statement of Use fee and months of additional processing time. If you have not, file under Section 1(b). Do not try to fudge it — filing under the wrong basis triggers office actions that cost more than doing it right the first time.
2. Run a clearance search before filing. The advantage of an ITU application is an earlier priority date, but that advantage is worthless if your mark is refused for likelihood of confusion. Search the USPTO database, state registries, and common-law sources for phonetic equivalents and marks in related classes before you file.
3. Budget for the full ITU lifecycle, not just the filing fee. Under the 2025 fee schedule, a single-class ITU application that needs one extension costs $625 in government fees ($350 filing + $125 extension + $150 SOU). If you expect to need multiple extensions, multiply accordingly. Know the total cost before you commit.
4. Plan your specimen strategy early. If you are filing ITU because you are pre-launch, start thinking now about what your Statement of Use specimen will look like once you launch. For SaaS products, plan to capture a screenshot of your live application interface showing the mark as soon as you have paying or trial customers. For physical goods, plan to photograph the product packaging or a screenshot of your live product page with a working buy button.
5. Track your Notice of Allowance deadline. The six-month deadline to file your Statement of Use after the Notice of Allowance issues is strict. Set calendar reminders for the deadline and for the extension filing window. Missing the deadline without filing an extension means losing your application — and the $250 Petition to Revive fee is not guaranteed to work.
6. Consider amending to use-in-commerce if you launch during examination. If you start using the mark in commerce while your ITU application is still pending — before the Notice of Allowance issues — you may be able to file an Amendment to Allege Use, which converts the application to use-based and can streamline the registration process. This also costs $150 per class under the 2025 schedule, but it eliminates the need for later extensions.
7. Talk to counsel about timing. The decision of when to file an ITU application — versus waiting until you are actually selling and filing under Section 1(a) — depends on your competitive landscape, your launch timeline, your budget, and the strength of your mark. An experienced trademark attorney can help you weigh the cost of filing early against the risk of someone else claiming your name first. For guidance on what happens after registration, including the maintenance deadlines that are easy to miss, see our article on why trademark lifespan and renewals matter for serious brands.

An intent-to-use trademark application is one of the highest-value legal tools available to a pre-launch startup. It lets you stake your claim before you ship, before you raise, and before a competitor can file the same name. But the ITU process is not a one-time filing — it is a multi-stage lifecycle with deadlines, specimens, and fees at every stage. The founders who get the most value from ITU are the ones who understand the full timeline, budget for the full cost, and prepare their Statement of Use specimen before the Notice of Allowance arrives — not after.