Many entrepreneurs have been rushing to file trademarks before their rivals do. This is usually to secure the first registration and prevent their marks from being used by others before they get a chance. Unfortunately, this strategy can backfire, especially if the applicant doesn’t take proper care in choosing the right priority date.
First, check whether the trademark owner has precedence over another user of the identical mark by looking at how long the mark has been actively used in commerce. However, the quickest and most effective way to get a priority date for your trademark is to submit a federal trademark application.
How to distinguish between a trademark priority date and a trademark registration date?
Trademark priority dates and trademark registration dates are both important dates in the process of registering a trademark. However, they have different meanings and implications.
A trademark priority date is the earliest a trademark can be registered with the US Trademark Office (USPTO). This date is usually the date of first use or first filing. A trademark registration date is an actual day on which the mark is officially registered with the USPTO. Registration can take many months, so registration may not take place until several months after the priority date.
You should file for an application with the trademark office to get a priority date. You must apply and pay the applicable fees to get a registration date. The priority date affects your chance of getting registered marks, but it doesn’t guarantee it. The filing will kick off the process, but it’s up to the USPTO to determine whether to accept or reject your mark. Keep this in mind when deciding which application to file.
The correct action plan is to file a trademark application that states your purpose for using the trademark in connection with your specified goods and services if you have not yet started using the brand but still want to be sure that your trademark rights are protected. As the trademark application declares the owner’s intentions to use the mark in connection with their business, this effectively allows the applicant to reserve their rights inside a trademark before its official registration.
What are the important points to look for while applying for priority dates?
A trademark’s priority date is one key factor determining how long it will be protected. The following are some important notes about priority dates:
- First-to-file brands normally have the earliest priority dates, while registered trademarks with extended protection periods (such as Design Marks and Geographical Indications) typically have later priority dates.
- Applicants with earlier priority dates can still protect their marks against third parties using secondary mechanisms such as trademark dilution or passing off; however, these measures may be more difficult to prove.
- If you’re planning to file a trademark, carefully consider your desired priority date. Without this information, you could file for a mark that is not as strong in the marketplaces.
When trademark examining attorneys from the USPTO analyze trademark applications, they look for earlier filings of marks that are similar. Examining lawyers does not contrast claimed use dates in trademark applications.
If you submit a trademark application first and someone else who previously used the mark files after your filing date, your application will be given priority. Prior users and late filers are required to wait until your application has been decided upon before having their application reviewed. Additionally, succeeding filers will be responsible for opposing your application or canceling your registration if it is accepted and advertised for the opposition.
If a company wants to protect its trademark against another party that has registered its trademark earlier, the first party has two options: sue or register an opposition. Suing is more expensive and time-consuming while registering an opposition will invalidate the earlier mark. However, if the earlier mark is strong, registering an opposition may not be successful.
Priority is established by the person who first files a trademark application stating their desire to use the mark or by the person who uses it consistently.
Conclusion
Priority dates serve as a way of establishing which trademarks should receive protection first. If a company registers its trademark first, it will receive the maximum protection afforded by law. However, this doesn’t always happen in reality. Suppose you want to ensure that your trademark application receives the highest priority and has the greatest chance of being registered. In that case, you should file your application as soon as possible. By filing early, you can beat rivals who may have filed their applications earlier or even before you did. However, if you wait too long and your application overlaps with another party’s filing, it may be difficult or impossible to separate your mark from theirs.
Disclaimer-Brealant provides access to independent attorneys and self-service tools, is not a law firm, and does not provide legal advice.
