TMEP 1102: Initial Examination of Intent-to-Use Applications

This is the October 2015 Edition of the TMEP

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1102    Initial Examination of Intent-to-Use Applications

In an intent-to-use application, the examining attorney will potentially examine the application twice: first, when the trademark or service mark application is initially filed based on a bona fide intention to use the mark in commerce under 15 U.S.C. §1051(b) (or is initially filed based on the applicant’s bona fide intention, and entitlement, to exercise legitimate control over the use of the mark in commerce, for a collective or certification mark application), and second, when the applicant files an allegation of use (i.e., either an amendment to allege use under 15 U.S.C. §1051(c) or a statement of use under 15 U.S.C. §1051(d)). See TMEP §§1104–1104.11 regarding amendments to allege use, and TMEP §§1109–1109.18 regarding statements of use. After receipt of the application, the examining attorney will initially examine the application to determine whether the mark is eligible for registration but for the lack of evidence of use. If the mark is determined to be eligible, the mark will be approved for publication and then published for opposition. If the applicant has not submitted an amendment to allege use before approval for publication, and the application is not successfully opposed, the USPTO will issue a notice of allowance. 15 U.S.C. §1063(b)(2); 37 C.F.R. §2.81(b). See TMEP §§1106–1106.04 regarding notice of allowance. In such a case, the applicant must submit a statement of use. 15 U.S.C. §1051(d)(1); 37 C.F.R. §2.88.

An intent-to-use application is subject to the same requirements and examination procedures as other applications, except as specifically noted. The examining attorney must raise all possible refusals and requirements in initial examination.