Intent-to-Use (ITU) Applications in India: A Strategic Edge for Aspiring Brands

The dream of launching a new business, product, or service in India is often filled with excitement and anticipation. You’ve meticulously crafted your brand name, designed a distinctive logo, and even perfected your slogan. But there’s a crucial step that often gets overlooked in the initial frenzy: securing your trademark before you’ve even started selling. This is where Intent-to-Use (ITU) applications in India become a powerful strategic option.

Let’s humanize the concept of an ITU application and understand why it’s a smart move for many aspiring brands in the dynamic Indian marketplace.

The Dilemma: “Use First, Then Register” vs. “Register First, Then Use”

Traditionally, trademark law in many parts of the world, including India to a significant extent, emphasized “use in commerce” as the primary basis for trademark rights. This meant you had to show you were actively using your mark in the marketplace before you could apply for trademark registration.

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The Human Angle: Imagine you’re an inventor with a groundbreaking new gadget. You know it’s going to be a hit, but it’ll take a few months to manufacture and launch. If you had to wait until sales began to protect your brand name, anyone could swoop in, register that name, and effectively steal your market identity before you even had a chance to show your invention to the world. That’s a terrifying thought for any innovator!

Recognizing this challenge, the Trademarks Act, 1999, in India, offers a vital provision: the Intent-to-Use application.

What is an Intent-to-Use (ITU) Application in India?

An Intent-to-Use (ITU) application is a special type of trademark application where you declare your bona fide intention to use a mark in the future, even if you haven’t started using it commercially yet.¹ When filing your Form TM-A with the Indian Trademark Registry, you simply select “Proposed to be Used” as the status of your mark.²

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The Human Angle: This is like booking a highly coveted concert ticket the moment they go on sale, even if the concert is months away. You’re securing your spot, ensuring you don’t miss out, even if you can’t attend right this second. It’s about foresight and securing your future.

The Strategic Advantages of Filing an ITU Application:

1. Securing an Early Priority Date: This is the most significant advantage. In a “first-to-file” system like India’s, the date you file your application (your priority date) is incredibly important. By filing an ITU application, you stake your claim to the mark much earlier. If someone else tries to register an identical or similar mark after your filing date, your earlier priority date gives you a strong advantage.
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   The Human Angle: It’s like calling “dibs” on your unique brand name before anyone else gets a chance. That early timestamp provides a powerful shield against potential future conflicts.
2. Deterring Infringement from Day One: Even with a “Proposed to be Used” status, once your application is filed, your mark enters the public domain. This makes it discoverable through trademark searches. Potential infringers are more likely to think twice if they see a pending application for the mark they might consider copying. You can also start using the ™ symbol to indicate your claim.
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   The Human Angle: It’s a “Beware, this territory is claimed!” sign, even if you haven’t fully moved in yet.
3. Peace of Mind for Business Planning: Knowing your core brand identity is potentially protected allows you to invest confidently in product development, marketing, and market research without the constant fear of losing your chosen name.The Human Angle: You can build your business plan around a solid foundation, rather than constantly worrying that your brand might be snatched away. It frees you up to focus on what you do best – innovating and growing.
4. Flexibility for Startups and Innovators: Startups often don’t have products or services ready for immediate commercialization. ITU applications bridge this gap, enabling them to secure their brand protection while still in the development phase.
5. Cost-Effective in the Long Run: While there are government fees involved in the application process, the cost of filing an ITU application is often far less than the potential costs of rebranding or engaging in lengthy trademark disputes if you delay and someone else registers your mark first.
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The Process and Important Considerations for ITU Applications:

• Bona Fide Intention: The key is a genuine, good faith intention to use the mark. While you don’t need to show use at the time of filing, you should be able to demonstrate a concrete plan to eventually use the mark.
• The Examination Phase: Your ITU application will go through the regular trademark examination process, including a trademark search by the examiner, and potential objections or oppositions from third parties.
• No “Proof of Use” Required Before Registration (Typically): Unlike some countries (e.g., the U.S. where a Statement of Use is mandatory before registration), India generally doesn’t require a separate “proof of use” submission for ITU applications to proceed to registration. The declaration of “Proposed to be Used” is usually sufficient for registration, provided no other refusal grounds arise. However, remember the “use it or lose it” principle: if a registered trademark is not used for five years and three months from its registration date, it becomes vulnerable to cancellation.³
• Maintenance of Use: Once registered, it’s crucial to actively use your trademark in commerce to avoid potential cancellation for non-use in the future.

The Human Touch of Strategic Protection

Filing an Intent-to-Use application in India isn’t just a legal formality; it’s a strategic embrace of foresight and protection for your brand’s future. It acknowledges that innovation and business growth often precede market presence, and it empowers you to safeguard your creative endeavors from the very outset. By leveraging this powerful tool, you can lay a strong foundation for your brand identity, ensuring that when you finally launch your offerings, your unique name and logo are already secured, ready to resonate with consumers and build lasting brand recognition. Don’t wait until it’s too late – protect your brand’s future, today.

Avinash Bhatt
Email: Bhattavi93@gmail.com