Registering a trademark in the USA: your name is only yours once you use it

Your trademark is on the register of your national trademark office or the EUIPO. In the USA, that does little for you at first. Trademark rights stop at the border, and American law has a quirk that regularly surprises Europeans: it asks not only who filed first, but also who actually uses the mark in commerce. If you are taking your products into the US market, whether through a distributor, a marketplace or your own online store, secure your trademark first.

This guide walks you through the United States Patent and Trademark Office, or USPTO: who has to represent you, the five filing bases, when the Madrid System is the better route, what proof of use requires, which fees and deadlines apply and what is left to do after registration. The basics of protecting intellectual property, meaning patents, copyrights and trade secrets, are covered in our overview Protecting intellectual property in the USA. Here we focus only on the trademark and the procedure.

1Why use counts for so much in the USA

The US trademark statute, the Lanham Act, defines use in commerce in 15 U.S.C. 1127 as the bona fide use of a mark in the ordinary course of trade, not merely to reserve a right. For goods, a mark counts as used when it is placed on the goods, their packaging, a label or an associated display and the goods are sold or transported in commerce. For services, it is enough that the mark appears in the sale or advertising of the services and the services are rendered in commerce.

This definition runs through the entire process. If you already use your mark in the USA, you file based on that use. If you are still planning, you file based on a bona fide intent to use and prove use later. If you rely on a foreign registration or the Madrid System, you can register without use at first, but you must declare use between the fifth and sixth year after registration. A mark that is never used in the USA will not stay on the register for good.

For European business owners, this means in practice that your trademark strategy and your sales plan go hand in hand. When your first shipment goes to the USA, under which name and for which products determines the basis you file on and how your list of goods and services should look. How to build your sales operation is explained in our guide Selling in the USA.

2You cannot do it without a US attorney

The USPTO requires foreign applicants to be represented. The rule in 37 CFR 2.11(a) is clear: anyone whose domicile is not in the USA or its territories must be represented by an attorney who is entitled to practice before the USPTO under 37 CFR 11.14. That means an attorney licensed in a US state. The office does not help you choose one. A trademark attorney or lawyer from your home country therefore cannot represent you before the USPTO alone; they usually work with an American colleague.

What domicile means is set out in 37 CFR 2.2. For individuals, it is their permanent residence; for companies, it is the principal place of business, where senior management actually directs the business. Every applicant must provide this address under 37 CFR 2,189 and correct it whenever it changes; a PO box or the address of a service provider does not meet the definition. For your company at home, that is its head office, so the attorney requirement applies.

If your group has a US subsidiary with real management in the USA, things look different. According to the USPTO, applicants domiciled in the USA do not need an attorney. Whether the mark should belong to the parent or the subsidiary, however, is not a question of attorney fees but of group structure, licensing and tax. Make that decision with your tax advisor before you file.

3Five routes onto the register

Under 37 CFR 2.34, every application needs at least one of five bases, each named after its section of the statute. Section 1(a) is the use-based application: you declare that the mark is in use, give the date of first use and submit evidence, the specimen, such as a photo of the product with its label or a page of your online store with an ordering function. Section 1(b) is the intent-to-use application; it secures your filing date before your first shipment crosses the Atlantic.

Section 44(d) lets you claim priority from a foreign application if you file in the USA within six months of that first filing, as set out in 15 U.S.C. 1126(d). Section 44(e) allows registration based on an existing registration in your country of origin. For this you need a copy or certificate of the registration, with a translation if it is not in English, plus a declaration of bona fide intent to use. Finally, Section 66(a) is the designation of the USA through WIPO's Madrid System.

The bases can be combined. A common pattern for companies that have just filed at home: claim priority under 44(d) and add 44(e) or 1(b) as a second basis. Which route fits depends on how far along your mark is at home and when you start selling in the USA. The table sums up the differences.

4Filing directly with the USPTO: Trademark Center and fees

Filing is electronic. For a long time this ran through the Trademark Electronic Application System, or TEAS. According to the USPTO, Trademark Center is now the only way to file a new application; the remaining forms are moving over from TEAS step by step, with the migration due to be completed in spring 2027. Under 37 CFR 2.32, the application must be filed in English and includes, among other things, the applicant's name, domicile and email address, the mark, and the goods and services by class.

The fees are set out in 37 CFR 2.6 and apply per class. An electronic application costs $350. Surcharges under 37 CFR 2.22 are added if required information is missing, if you describe your goods and services in free text instead of choosing them from the USPTO's Acceptable Identification of Goods and Services Manual, and for each additional 1,000 characters if your description runs longer than 1,000 characters. If you translate the description from your home-country application word for word, you can easily end up paying more than necessary and getting queries on top.

For applications under Section 1 and 44, you have three months to respond to an examiner's objection, the office action, under 37 CFR 2.62, extendable by three months for a fee. For applications through the Madrid System, it is six months. Miss the deadline and you lose the application. The table shows the USPTO fees; the US attorney's fee always comes on top.

5Through the Madrid System: one application, many countries

According to WIPO, its Madrid System links 117 members covering 133 countries. Germany joined the Madrid Protocol in 1996, Switzerland in 1997, Austria in 1999, the European Union in 2004 and the USA in 2003. If you are based or do business in a member country and have filed or registered a mark there, the so-called basic mark, you can request protection in other member countries, including the USA, with a single international application. The international registration is issued by WIPO's International Bureau; an EU trademark from the EUIPO can also serve as the basic mark, because the European Union is itself a member.

For the USA, the process has two special features. First, under 15 U.S.C. 1141f, the request must include a signed declaration of bona fide intent to use the mark in the USA. Second, the USPTO examines the designation like a domestic application, with the same requirements for the description of goods and services. Under 37 CFR 2.6, the US fee for applications received on or after February 18, 2025 is $600 per class and is paid through WIPO. If the designation succeeds, the mark is treated under 15 U.S.C. 1141f(b) as used in the USA from the earliest relevant date, usually the date of the international registration or of the claimed priority.

Whether the Madrid System pays off depends on how many countries you need. If you have other markets in your sights besides the US, such as Canada or the UK, you manage one registration instead of several. If you only need the US, filing directly is often simpler, because you can draft the list of goods and services to USPTO rules from the start. Either way you need a US attorney, at the latest when an examination notice arrives.

6Proof of use

For an intent-to-use application, the USPTO issues a notice of allowance after publication if no opposition succeeds. From then on, under 15 U.S.C. 1051(d) and 37 CFR 2.88, you have six months to file the statement of use: a declaration that the mark is used in the US for all the goods and services in the application, with the date of first use and a specimen. On request, the USPTO extends the deadline by another six months; beyond that, further extensions up to a total of 24 months are possible if you show good cause and keep declaring your intent to use the mark.

The specimen has to show how the mark appears in commerce. For goods, that is typically a photo of the product or packaging bearing the mark, or a page of your online store showing the product with the mark and a way to order. Advertising alone is not enough for goods under the definition in 15 U.S.C. 1127, because the law requires goods to be sold or transported. If you are building your US store, you will find the basics in the guide Shopify and your own online store for US customers.

If you use the mark for only some of the goods listed, you can delete the rest or divide them into a separate application. That is why an honest list beats a broad one from day one. Claim goods you are not using the mark for, and you put the entire registration at risk.

7Processing times and procedure

The USPTO publishes its processing times. As of October 1, 2026, it took an average of 4.3 months from filing to the first examination notice and 10.4 months to registration or abandonment. The office points out that individual cases may move faster or slower. Madrid System filings are queued by the date of the international application.

The procedure follows a fixed pattern. After filing, an examining attorney checks the mark for likelihood of confusion with earlier marks, for descriptive terms and for formal defects in the list of goods and services. If there are objections, you get an office action, which your attorney responds to. Once examination is passed, the mark is published in the Official Gazette and third parties can file an opposition. Registration follows, and for intent-to-use applications only after the statement of use. Whether a mark is registered is decided by the office alone.

A search before filing saves time and money. The USPTO makes its trademark database publicly available. An application that fails because of an earlier, similar mark costs you the filing fee, the attorney's fee and, if the product is already on sale in the US, in the worst case new packaging.

8After registration: the deadlines that remain

Registration starts a series of deadlines you must not miss. Under 37 CFR 2,160, you have to file a declaration of continued use, the declaration under Section 8, between the fifth and sixth anniversary of registration, and again in the final year of every ten-year period. For registrations from the Madrid System the same applies as a declaration under Section 71, governed by 37 CFR 7.36. A six-month grace period is available for a surcharge.

A direct US registration lasts ten years at a time under 15 U.S.C. 1059 and can be renewed in the final year of the period or within a six-month grace period; protection from the Madrid System runs as long as the international registration under 37 CFR 7.36. Filed electronically, the fees are $325 per class each for the declaration of use and for renewal. Miss these deadlines and you lose the registration, even if you keep using the mark.

Maintenance also covers your address. If you move or relocate your management, you must update the domicile address under 37 CFR 2,189. For groups with a US subsidiary, it pays to put ownership, licensing and use in writing, so that use by the subsidiary can be attributed to the owner.

9Checklist before you file

Before your attorney files, you should have answers to these questions:

• Who should own the US mark: the parent company at home or the US subsidiary?
• Are you already using the mark in the US, or are you filing on an intent-to-use basis?
• Do you have a pending application at home whose priority you can claim in the US within six months?
• Besides the US, do you need other countries that make the Madrid System worthwhile?
• Do your goods and services match entries in the USPTO ID Manual, or will a surcharge for free-form text apply?
• Have you searched for earlier, similar marks in the US?
• Are the deadlines for proof of use, the Section 8 declaration and renewal in your calendar?

Your trademark is one building block of your market entry, neither the first nor the last. How company, taxes, sales and product safety fit together is covered in the overview Expanding successfully into the USA; the obligations for products on the US market are set out in the guide Product liability and product approval in the USA.

In short

• If your domicile or principal place of business is outside the US, you must be represented before the USPTO by an attorney licensed in the US (37 CFR 2.11).
• There are five filing bases: use, intent to use, priority of a foreign application, foreign registration and the Madrid System.
• Filing electronically costs $350 per class, and designating the US through the Madrid System costs $600 per class, in each case excluding attorney's fees.
• Intent-to-use applications need proof of use before registration; foreign and Madrid registrations need it in the fifth to sixth year.
• On average it takes 4.3 months to the first notice and 10.4 months to registration or abandonment.

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