A US trademark application must declare a "filing basis." There are four main ones: use in commerce (Section 1(a)), intent to use (Section 1(b)), foreign registration (Section 44(e)), and foreign-application priority (Section 44(d)). Chinese companies most commonly use 1(a), 1(b) and 44(e).
Use in Commerce (Section 1(a))
The mark is already in use in US commerce at the time of filing. Required:
- At least one specimen of use per class (product photos, sales pages, packaging, etc.);
- The date of first use and the date of first use in commerce.
Suitable for sellers already selling on platforms such as Amazon US; the fastest route to registration, with no supplementary evidence needed later.
Intent to Use (Section 1(b))
The mark is not yet in use, but there is a bona fide intent to use it. The process:
- File first; pass examination and publication;
- Within six months of the Notice of Allowance (NOA), file the Statement of Use (SOU) with specimens;
- Up to five extensions (six months each) are available — meaning the use evidence must be supplied within about three years at most.
Suitable for companies whose products are not yet on the shelf but that want to secure the filing date first. Note: if the Statement of Use is not filed in time, the application is deemed abandoned.
Foreign Registration (Section 44(e))
Based on a registration in the home country (e.g., China), US registration can be obtained without submitting US use evidence. Conditions:
- The mark and the scope of goods are identical to or narrower than the foreign registration;
- The foreign registration remains in force.
The downside: genuine use is still required after registration — the Section 8 declaration of use is due in years 5–6 all the same, and prolonged non-use can lead to cancellation.
Foreign-Application Priority (Section 44(d))
Filing a US application within six months of the first foreign filing lets you claim the foreign filing date as the priority date; mainly used to secure the filing date, and usually combined with 1(a)/1(b)/44(e).
How to Choose
Already selling in the US → 1(a); product not yet listed but will be within six months → 1(b); Chinese registration already granted and unwilling to submit use evidence for now → 44(e).
If you are unsure about the issues above, you can start with a US trademark registration at MyTMBee and act on the analysis provided by a registered agent.