There are two primary types of federal trademark filings: (1) in-use; and (2) intent-to-use (ITU). ITU applications are specifically used to establish priority rights when the applicant intends to use in the future. However, the applicant listed in the application must have a bona fide (i.e., good faith) intent to use the trademark. If the applicant does not have a bona fide intention to use the mark in commerce, the application is void ab initio.
The law is well established on this topic. “The application must include a verified statement that the applicant has a bona fide intention to use the mark in commerce.” TMEP 1201.02(b). In addition, The Trademark Manual of Examining Procedure (TMEP) clarifies that “When the person designated as the applicant was not the person with a bona fide intention to use the mark in commerce at the time the application was filed, the application is void. Am. Forests v. Sanders, 54 USPQ2d 1860, 1864 (TTAB 1999) , aff’d, 232 F.3d 907 (Fed. Cir. 2000) (holding an intent-to-use application filed by an individual void, where the entity that had a bona fide intention to use the mark in commerce on the application filing date was a partnership composed of the individual applicant and her husband).”Id.
Consider an individual in the process of forming a business and who wants to file an ITU trademark as soon as possible. In such a scenario, the business plan is for the unformed business to use the trademark in commerce. Thus, the business has the bona fide intent to use the trademark. Not the individual. However, the business does not exist. In this example, you should not file the ITU application until the business exists. At that point, you can identify the business as the applicant on the trademark application. You cannot file the trademark in the name of the individual when the individual does not have a bona fide intent to use the trademark. Doing so will render your trademark application invalid, which could have a major impact on your trademark rights.
Once you establish a business plan, form the business as soon as possible. After the business legally exists, you can file an intent to use trademark application naming the business as the applicant. Don’t rush your ITU trademark application or it might be void.
Technically yes, but you would probably do business as a corporation. You are better off forming an LLC or corporation prior to filing.
No, your trademark application is irrevocably invalid. Form the company first, then file.