The filing basis is the legal basis for filing a trademark application that must be specified in a trademark application. While the filing basis does not have to be specified for the trademark application to receive a filing date, an examining attorney will require the applicant in the first Office Action to asset a filing basis and submit all elements required for the application to meet the selected filing basis.
A total of five (5) individual filing basis exist when filing a trademark application. See TMEP § 806. The two most common filing basis are:
(1) in-use, and
(2) intent-to-use, which make up a majority of all United States trademark filings.
The remaining three filing basis provides a priority filing date to eligible applicants who have filed in an eligible foreign country. These remaining three basis are:
(3) a claim of priority based on a trademark application filed in a foreign country under §44(d) of the Trademark Act,
(4) registration of the trademark in the applicant’s home country under §44(e) of the Trademark Act, and
(5) extension of protection under §66(a) of the Trademark Act and the Madrid Protocol.