When you file a trademark registration application, you can have the option of filing an “in use” application or an “intent to use” application. “In use” applications are for products or services that are currently available in the marketplace. If you are not currently selling a product or service, but intend to do so in the near future, you can file an “intent to use” application. If this application is approved, you will be given six months to provide proof that you are using the trademark. Filing an “intent to use” trademark application is worthwhile in case of a legal dispute over the trademark. Having an earlier filing date provides you with common law ownership of the mark, even if you don’t yet have formal registration.
The original Netflix show “Bridgerton” is a great example of the “intent to use.” The name “Bridgerton” was filed by Netflix in August 2019. After its registration review was completed, the USPTO sent a Notice of Allowance to Netflix, which means that the company was required to file a Statement of Use or request an extension of its “intent to use.” This provides proof that an applicant has started using the trademark in commerce. This includes submitting a specimen of the mark as it is being used in the market. For example, applicants can present a website displaying their trademark where their products or services can be obtained as well as advertisements or promotional materials. In this case, Netflix could submit a screenshot of their website displaying the “Bridgerton” name, or proof that viewers can actually watch the show on their platform.
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