Slumping sales have McDonald’s searching for something new and its recent trademark application may reveal what it has in store. In July, McDonald’s filed a trademark application on McBrunch. But does this mean we can count on an 11 AM menu? The fast-food giant is playing coy. When asked about its plans for the mark, the company stated it routinely files “intent-to-use” trademark applications and sometimes moves forward with them, and sometimes it doesn’t. So that leaves us with a resounding maybe.
McDonald’s filed a trademark application for the intent to use on McBrunch for restaurant services. You might ask: what is an “intent-to-use” trademark application and how is it different from an “in-use” application? An intent-to-use application means McDonald’s has not yet used the mark in commerce but has filed a U.S trademark application in order to reserve a priority date for the mark in case it does decide to move forward with the brand. This is in contrast to an “in-use” filing, which is filed when the applicant can show an already existing use of the mark in commerce. With an intent-to-use filing, the applicant has 6 months from allowance to show use in commerce. If use in commerce is not shown within 6 months, the applicant may either pay a fee to obtain an extension of 6 months to show use in commerce or let the trademark application go abandoned. Up to five 6-month extensions are allowed, providing a three-year window to actually establish use in commerce.
An intent-to-use trademark application is a good way to reserve a mark that you may want to use in the future. It buys you some time to get everything in order. Say you have a great business plan, but you need some time to get everything going. You’ve thought of a great brand name and done a thorough trademark search to make sure that no confusingly similar marks are already out there. You haven’t used the mark in commerce yet, but know it’s the mark you want to use. It’s probably a good idea at this point to file an intent-to-use trademark application to ensure you reserve priority of use rights as of the date of your filing.
After filing the trademark application, the mark is examined by the Trademark Office to make sure that there are no conflicting marks. If there are no conflicting marks, then your mark will publish and eventually receive a Notice of Allowance, provided no one opposes registration during the publication period. From that time, you begin the 6-month windows to show use or file extensions. Having this extra time to hold your place in line and get things together can be very valuable. It will be interesting to see how McDonald’s moves forward with McBrunch. Will plans be scuttled or will we all be enjoying a late breakfast/early lunch in the future?