How to Get Trademark First Filer Advantages: Why An Earlier Filing Date Matters

Why does an early trademark filing date matter?

Why would it matter to be the first to file your trademark application with the USPTO? US trademark law generally regards the first trademark user, and not the filer, as the rightful owner. If earlier trademark use is the determining factor of ownership, why should you file a trademark application before others apply for similar marks? Actually, an earlier trademark filing date can potentially save you years of time and thousands of dollars. Let’s figure out why.

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How an earlier trademark filing date can save you years of time

USPTO trademark applications are examined in the order they are received. By filing your trademark application before others apply for similar marks, your application will be examined first while theirs are put on hold. An earlier trademark filing date, therefore, carries substantial advantages in the application process.

If your application is examined first, your trademark may also be registered sooner assuming no opposition. In other words, there is no good reason to wait to file if you have decided to move forward with a particular mark.

Cost savings of an earlier trademark filing date

You may save a ton of money by filing your trademark application before others. If you and another business each apply for similar marks, the earlier-filed trademark application will be examined first. Known as the prior-pending application, the earlier application will be reviewed without regard to the date of first use alleged in any later-filed application. In other words, examining attorneys do not compare dates of first use when reviewing trademark applications.

Even if a subsequently filed trademark application alleges an earlier first use date, that earlier use date will not matter to the examining attorney. The burden will fall on subsequent applicants to oppose your trademark application. For companies lacking financial resources, such a trademark opposition might never occur. So an earlier filing date saves the cost of potentially defending an opposition.

On the flip side, consider the cost savings of not having to go on the offensive. If a competitor, or even an opportunist, were to apply for a similar mark even just a few days before your filing date, you would face the cost and burden of having to oppose their trademark application.

Advantages of applying before others

There are also substantive advantages of an earlier trademark filing date. As discussed here, the filing date of an ITU application becomes the constructive date of first use if the application matures into a registration. In other words, the law will treat an ITU filing date as if it was first date of use if an ITU mark is successfully registered. This is a very tangible and useful benefit for a trademark owner seeking to prevent others from using a similar mark.

What happens to later-filed trademark applications?

A later-filed application for a similar mark will typically be suspended pending the outcome of an earlier-filed application. The suspension may take several months or even a few years. For example, if the previously filed application was based on an Intent-To-Use, that applicant may take up to three years to file a Statement of Use assuming their application gets allowed (which could take 1-2 years if any refusals had to be overcome). So a major disadvantage of a later filing date is the delay in registration that could take years to resolve.

What are the risks of filing trademark applications later?

Again, it bears emphasis that trademark applications are examined by the Trademark Office generally in the order received. A later-filed application will, therefore, incur the following risks:

  • suspension pending the outcome of an earlier-filed application for a similar mark which can take years
  • delay in registration even if your alleged first use date is earlier than that of the prior-filed application
  • costs of having to oppose prior-filed application

Is the cost savings of a Statement of Use worth the risk of years of delay?

What if you have not yet used your trademark to sell your goods or services? You can still gain first-filer advantages by filing an Intent-To-Use application. Your primary risk in filing an ITU application would be the additional cost of filing evidence of use at a later time.

Weigh the risk of the additional cost of an ITU application versus the risk of years of delay. Which risk is greater?

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