Priority Dates in Trademark Law

The best way to protect your small business brand is by filing a trademark application with the USPTO. As you work through the trademark registration process, you will come across the term “priority date.” This post discusses what the priority date is and the important role of priority dates in trademark law.

What is a Priority Date?

Priority dates in United States federal trademark law refer to the date that the trademark application was filed. The filing date establishes the applicant’s rights and priority over other potential applicants. It is a critical aspect of the “first-to-file” system, which grants trademark rights to the first person or entity to file an application for a particular mark.

Understanding the First-to-Use and First-to-File Systems:

Prior to 1988, the United States followed a first-to-use system. This system awarded trademark rights to the entity that could demonstrate prior use of the mark in commerce, regardless of whether they had registered it with the USPTO.

The Trademark Law Revision Act of 1988 changed that system to a first to file system. Under this system, trademark rights are granted to the first party to file a trademark application. This change highlighted the importance of priority dates in the trademark filing process and allowed applicants to file under an “intent to use” basis.

Determining the Priority Date:

While the priority date is typically the filing date of the application, there are ways to claim an earlier date. Let’s take a closer look at these scenarios:

1. Regular Trademark Application: This applies to trademark applications without claiming any priority based on a foreign or domestic application. The priority date will be the date that the USPTO receives your application.
2. Foreign Priority Claim: This applies if you’ve previously filed a trademark application in another country within six months of filing with the USPTO. In this case, the priority date will be the filing date of the initial foreign application.
3. Domestic Priority Claim – This applies if you have previously filed a trademark application and are filing a new application based on the original filing. In that case, you may claim priority based on the earlier domestic filing date. The priority date will be the filing date of the original U.S. application.

Why Priority Dates Matter:

Priority dates are critical in trademark law. These dates determine the order in which applications are examined and can affect the outcome of conflicts between competing applications. If multiple applications are filed for similar marks, the applicant with the earliest priority date generally receives priority over subsequent applicants.

Moreover, priority dates are essential when determining the potential for trademark infringement. If a later-filed application is found to infringe upon an earlier-filed application, the applicant with the earlier priority date is typically granted the right to use and register the mark.

Conclusion:

Navigating the trademark filing process involves understanding the concept of priority dates. These dates establish the order in which applications are considered and can significantly impact the outcome of trademark disputes. Whether you’re filing a regular application or claiming priority based on previous filings, ensuring an early priority date can strengthen your trademark rights and protect your brand in the marketplace.

Contact Alex to discuss the post or to get started on filing your trademark application.