The use-based application (also known as an “in-use” application) is for trademarks that were in use before the time of filing. To base the application on the applicant’s use of the mark in commerce, the applicant must submit the following four items:
- A statement that the mark is in use in commerce and was in use in such commerce on or in connection with the goods or services listed in the application on the application filing date;
- The date of the applicant’s first use of the mark anywhere on or in connection with the goods or services;
- The date of the applicant’s first use of the mark in commerce as a trademark or service mark; and
- One specimen for each class showing how the applicant actually uses the mark in commerce.
If the applicant does not file a specimen with the initial application, the applicant must submit a statement that the specimen was in use in commerce at least as early as the application filing date. The applicant must verify these items, i.e., supported either by a signed affidavit or declaration.
If the trademark has not been in commercial use yet, then the applicant should file an intent-to-use (ITU) application instead of a use-based application. Two advantages that used-based applications have over ITU applications are due to the fact that the applicant does not need to file an allegation of use later for the in-use application, resulting in:
- overall shorter pendency and
- slightly lower expenses.