If you’ve already launched a website, printed packaging, or set up social profiles under a new brand name, you don’t need to pause everything while you wait for a registration certificate.
In the US, trademark rights come from actual use in commerce, not paperwork. So yes, you can use a trademark before it is registered. But using an unregistered mark without a clear strategy can expose you to expensive infringement risks. Here’s how to navigate the transition safely.
Yes, You Can Use It Now
US trademark rights are built on use. When you sell goods or services under a name and customers start connecting that name to you, you build what are called common law rights. This happens automatically, with no application and no fee. You can use your name in business before you ever file anything, and the law starts protecting it the moment customers see it as a brand.
This is the difference between having a brand and having a trademark. A brand is the name, logo, and reputation you build. A trademark is the legal right to stop other people from using a confusingly similar name. If you want a fuller picture of how those two things relate, I wrote about the difference between a brand and a trademark separately. You can own real rights in your name just by using it.
And unlike a patent, you don’t have to keep a trademark secret before you file. With a patent, going public too early can cost you the right to protect it. Trademarks are the opposite. Public use is what builds the rights in the first place, so there’s no reason to hide your brand. I cover that contrast in this short video.
Common law rights come with a real limit. They only reach the geographic area where your mark is actually used and known. If you sell coffee under a name only in Houston, your rights probably stop around Houston. Someone in another state could use the same name without stepping on you.
That doesn’t mean federal law ignores you. Even without a registration, you can sue under Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), which protects unregistered marks in federal court. The real limit is reach and proof. Without a registration, your rights only stretch as far as you’ve actually used the name, and you have to prove that scope yourself. Registration is what turns a local right into a national one, and it gives you legal presumptions that make the rights much easier to enforce. That’s the main reason founders register. More on that below.
The legal foundation for all of this is the Lanham Act, the federal trademark statute. Filing an application is governed by 15 U.S.C. 1051, but the rights themselves start with use.
The ™ and ® Rule (Don’t Get This Wrong)
The rule for trademark symbols is strict, and getting it wrong can jeopardize your application.
You can use the ™ symbol right now. Anyone claiming rights in a mark can use ™, with no registration and no application required. If your mark is for a service instead of a product, the equivalent is ℠ (service mark). Put ™ next to your name today. You’re claiming the brand as yours, and that’s exactly what the symbol is for.
You cannot use the ® symbol until your federal registration actually issues. The ® means “federally registered,” and using it before that’s true is improper. It’s not a small thing either. Under 15 U.S.C. 1111, using ® before registration can be cited as a reason to refuse your application, and it can block you from recovering damages if you ever have to sue someone for infringement. So the rule is simple: ™ now, ® only after the certificate is in hand.
The ™ symbol is free and available to anyone. The ® has to be earned through registration.
Clear the Name First (Cheaper Than a Rebrand)
Building common law rights doesn’t protect you if someone else got there first. If your brand creates a “likelihood of confusion” with an existing mark, you can be forced to stop and rebrand, no matter how much you’ve already put into it.
Before you commit to a name, check that you’re not already using someone else’s. You can build all the common law rights you want, but if a senior user (someone who used a similar name before you) already owns that space, you could be the infringer. You don’t get a pass just because you never registered.
Likelihood of confusion is the test that decides whether two marks can coexist, and I broke down how it actually works if you want to see what examiners and courts weigh. It comes down to whether a normal customer would think the two brands come from the same place.
A clearance search is how you check before you commit. A basic search usually runs a few hundred dollars, roughly $250 to $500, and a comprehensive search with legal review costs more. Now compare that to a forced rebrand after launch: new packaging, new signage, a new domain, new ad creative, and the brand recognition you’ve already paid to build, gone. The search is cheap insurance. I put together a guide to running a real trademark search so you can see what a thorough one involves.
Clear the name first. Then use it with confidence.
Pick Your Filing Basis: 1(a) or 1(b)
Once your name is clear, you’ll want to register it federally. When you file, the USPTO asks for your “basis.” For most founders it comes down to one question: are you already using the name, or are you about to?
Section 1(a): Use in Commerce
This is for founders who are already selling under the name. You file based on actual use, and you submit a specimen, which is just proof you’re using the mark in business. A product label, a screenshot of your checkout page, or a photo of packaging usually works. If you’re already in market, 1(a) is your lane.
Section 1(b): Intent to Use
A 1(b) “intent-to-use” application lets you file before you launch, as long as you have a genuine plan to use the name soon. It locks in your priority date early, which matters because of how US priority works.
Common law makes the US a “first to use” country, but federal registration adds an overlay. When you file an application that later registers, your nationwide priority dates back to your filing date under 15 U.S.C. 1057(c). Filing a 1(b) application before you launch can put you ahead of a competitor who starts using the same name after your filing date, even if they get to market first. That advantage is one of the real reasons to get an application on file.
A 1(b) application doesn’t register on its own. Before you get the certificate, you have to show you’re actually using the mark. After the USPTO approves your application, it sends a Notice of Allowance, and you then file a Statement of Use within 6 months. If you need more time, you can request extensions in 6-month increments, up to 36 months total. The Statement of Use carries a fee of $100 per class. Once that clears, your registration issues.
Already selling? File under 1(a). Not launched yet, or want to lock in priority before a competitor notices the name? File under 1(b).
What Federal Registration Actually Costs and Gives You
The USPTO changed its fee structure on January 18, 2025, and a lot of online guides still quote the old numbers.
There’s now a single base application fee of $350 per class of goods or services. The old TEAS Plus and TEAS Standard split (the $250 / $350 tiers) is gone. A few surcharges can apply: $100 per class if your application is missing required information, $200 per class if you write your own custom goods-and-services description instead of picking from the USPTO’s pre-approved list, and an extra charge for unusually long custom descriptions. For most straightforward filings, you keep it to the $350 base by choosing standard descriptions. If you want a fuller breakdown of fees plus typical attorney costs, I keep a current cost guide for trademarks updated.
On timing, the USPTO has gotten faster. As of 2026, you’re looking at roughly 3 to 5 months before your application gets its first review, and about 12 to 18 months total to registration when things go smoothly. Most applications get at least one office action (a question or objection from the examiner), which adds time. These numbers shift, so treat them as current ranges rather than guarantees.
A federal registration upgrades a local common law right into a nationwide one. The benefits of registering federally include:
- A legal presumption that you own the mark nationwide and that it’s valid, under 15 U.S.C. 1057(b)
- Nationwide constructive notice, meaning everyone is treated as on notice of your claim, under 15 U.S.C. 1072
- The right to use the ® symbol
- Eligibility for “incontestable” status after 5 years of continuous use, which makes the mark much harder to challenge, under 15 U.S.C. 1065
- The ability to record your mark with US Customs to block counterfeit imports
- Access to stronger remedies, including statutory damages for counterfeiting that run from $1,000 to $200,000 per mark, up to $2,000,000 if the infringement is willful, under 15 U.S.C. 1117
That’s the difference between a local right you’d have to prove and a national asset you can lean on. Registration turns your brand into something you can defend, license, and build value around.
FAQs
Yes. The ™ symbol is available to anyone claiming rights in a mark, with no filing required. Use ℠ instead if your mark is for a service. You can start using either one today.
Only after your federal registration actually issues. Using ® before that point is improper and can be used as a reason to refuse your application or to deny you damages in an infringement case.
No, you build common law rights through use. But those rights are limited to the area where your mark is used and known, and they’re harder to enforce than a federal registration. Using it is fine; registering turns a local right into a national one.
Yes. A Section 1(b) intent-to-use application lets you file before you’re selling, as long as you genuinely plan to use the name. It locks in an early priority date, and you confirm actual use later with a Statement of Use.
As of 2026, expect roughly 3 to 5 months before your first review and about 12 to 18 months total when things go smoothly. An office action from the examiner can add time, and most applications get at least one.
Next Steps
You don’t have to wait to use your brand. Put ™ on it, start building, and treat clearing the name as the first real step rather than the last. If you’re already selling, a 1(a) application protects what you’ve built. If you’re about to launch, a 1(b) filing can lock your priority before anyone else moves on the name.
The right move depends on where you are: whether you’ve launched, how widely you’re selling, and how much someone copying you would hurt. If you’d like a second set of eyes on your name before you commit to it, or help deciding between filing now or filing on intent to use, that’s exactly the kind of thing I help founders sort out. You can learn more about our trademark registration services, or here’s a link to my calendar if you’d rather just talk it through. Grab a time that works for you.
