Trademark Registration Aside, Priority is Key

The first to use a distinctive mark in connection with a particular set of goods or services has legal rights to that mark. With this in mind, priority is immensely important when it comes to determining who has rights to the use of a mark. Whether it is under common law or statute, the senior user of a mark will ultimately prevail. This fact remains even when someone has a trademark registration.

A trademark registration with the United States Patent and Trademark Office (USPTO) requires that the applicant provide several dates, including the first use date and the first use in commerce date. Of these two, the first use in commerce date represents the date upon which the applicant is claiming priority trademark rights, and presumably has proof to substantiate that claim at least as early as that date. Once filed, the mark receives a filing date. For intent to use trademarks, under Section 1(b) of the Trademark Act, this filing date serves as the constructive priority date, as long as the mark proceeds to registration. Finally, a registration date signifies the date from which all of the benefits inherent to a federal trademark registration begin.

While all of these dates are important for various reasons, owners of a trademark registration must remember that the senior user who failed to register its mark may still have superior rights to the mark, despite the fact that you are now the owner of trademark registration for the mark. While federal law provides a statutory priority date at the time of filing, common law dictates that the first to use the distinctive mark in commerce has priority rights and will prevail. Therefore, just because you have a federal trademark registration, you may not be "in the clear."

A trademark clearance or availability search can help alleviate the concern that there was a preexisting use that would have priority rights, so as to trump any subsequent use of the mark by you. If indeed clear, filing for either an intent to use trademark or an actual use in commerce trademark as soon as possible can provide you with a priority date. More importantly, doing so may avoid priority disputes in the future. Ultimately, time truly is of the essence for trademark registrations.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm focused on complex litigation, intellectual property matters, internet law and trademark registration and prosecution. Speak with a trademark registration attorney today and learn more about what really matters concerning your trademark rights.

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