Question: Can I file an intent to use trademark application if I am already advertising my brand?
I want to file for a TM for my clothing brand as an “intent to use” because there are some items (within the same class) that I do actually intend to use later. But I don't want to have to file a new application as it may only be a year away until I do incorporate those other items. I also don't know if what I how I have used my brand name now, is classified as ‘already in use' for example; I have a website with products on there (with brand labels on them) to get my brand out there and known, but I don't actually make any of my items available for sale yet. Is this classified as ‘already in use'. If it is, is it true that I cannot add on items within the same class, that I am not using now? For instance, later I want to design shoes can I include that on this application?
Answer: If you are not putting labels on your clothing (whether you are actually selling them or just advertising them for sale), or in some other fashion using your trademark on your clothing, then you are not actually using your trademark for application purposes. In that situation, it would be appropriate to file an intent-to-use application.
You are generally correct that you cannot expand the scope of goods beyond what is in the original trademark application, even if the expansion is in the same class of goods.