Can you Trademark a Product before it Exists?

To secure trademark rights, you would need to use the trademark in trade; therefore the existence of the product in the marketplace becomes essentiality to secure a trademark registration. So, in case you have not started settling your products in the market, what is there to trademark? However, if you would be launching your product within 18 months, then most countries allow like the US and UK allow you to file an intent-to-use trademark application. That’s basically how large businesses secure the rights for their products even before they are launched in the market. Examples of this include Apple’s products and Hathe try Potter Book titles. An intent to use application will help you establish yourself as the first user of the trademark and create prima facie evidence when you later proceed for trademark registration.

What is a Product Trademark?

There are several aspects of your product that you can trademark. However, the first aspect that most businesses focus on is the name of the product. Following which, aspects like shape, distinctive colours or product specific logo can be trademarked. A product trademark registration helps distinguish your products from the products of others. Upon registration, the trademark claim gives the owner a characteristic of proprietary for the product.


What is an Intent-to-Use Application?

The trademarks offices of most countries allow an application for intent to use, to help secure the rights to a future trademark of the business. The basis for such a trademark is that the business would start using the mark in trade within 18 months. So, you can’t just trademark an idea; it would have to be part of your business’ plan and activities. For an intent-to-use application in certain countries, you might also need to have a sample product. Through the application, you will be seen as the first user of the trademark.

Process of filing

Most countries today have the option of applying online, however, if there is no such option, you can visit the trademarks office to file your application. Once the application is filed, it would take a minimum of 3-6 months to get a revert on your application. At this stage, it is possible that the authorities would ask you for more information. In case such information is not required, the mark is published in the trademarks journal or the official gazette. Once published, anyone has the right to oppose the mark. In case of no oppositions, the mark will proceed to be registered.

Depending on the country-specific trademark laws, you might have to file an additional document called the Statement of Use with the authorities. This practice is common in the US. The statement of use is to be filed within a specific period after obtaining the trademark registration. This is basically compliance that shows evidence of the use of the trademark. In case you are not in a position to launch the product, you can request for an extension to file the statement of use. Such extensions can be allowed as long as efforts are made to ensure that the trademark is used in commerce.