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A common question we receive at FlatFee Trademark is whether a trademark owner should start using their mark before they actually have it registered. They worry that someone will see their mark and steal it before it's properly protected. I can't help but smile every time, their concern is so endearing. But the fact is, you must use your trademark before the United States Patent and Trademark Office (USPTO) will even allow the mark to be registered. The USPTO doesn't grant registration to people who are simply trying to "hold" trademarks. Unlike domain names, which can be snapped up without ever actually being used, the USPTO aims to discourage trademark hoarding by requiring proof of actual use before allowing trademark registration. Federal trademark rights are generally bestowed on the "first to file." The first party to file at the USPTO gets priority for registration and nationwide priority ownership. To protect the interests of current trademark users and prospective trademark owners alike, U.S. trademark law permits two bases on which to obtain federal trademark registration: actual use of the mark, or a bona fide intent to use the mark in commerce. If a prospective trademark owner is not yet using their mark on the goods or services for which they would like to obtain trademark protection, they can still file for trademark registration and preserve their place in line (so to speak), until they actually start using the mark. Trademark applications based on such bona fide intent are referred to as “Intent to Use” or “ITU” applications. ITU applications afford trademark owners some of the benefits associated with trademark registration, so it's a useful tool for owners who have not yet begun using their mark but would like to preserve their trademark rights early on. An ITU application provides several benefits, including: priority filing date for the mark; constructive notice of use of the mark in commerce; and nationwide right of priority to use the mark for the goods or services specified in the application. An ITU application initially proceeds like an "in use" application. It's assigned to an Examiner at the USPTO who checks it for errors or conflicts with other marks, and if there are none, the Examiner will issue a "Notice of Allowance." This is a tentative approval of the mark. The applicant doesn't get the full complement of rights and enforceable protections offered by trademark registration until they actually start using the mark and notifies the USPTO of such use. This is accomplished by filing an “Amendment to Allege Use” or a “Statement of Use” with the USPTO. The applicant must also submit a specimen showing how the mark is actually used in connection with the goods or services specified in the ITU application. Once the USTPO approves an ITU application and issues a "Notice of Allowance," the applicant is allowed six months to make use of their mark. This six-month period may be extended, for a fee, until the mark is in use and the applicant can file their Statement of Use and obtain registration. For more information on ITU applications or protecting your trademark during the development stages of your business, please contact FlatFee Trademark for a free attorney consultation, 1.800.769.7790. About the Author:
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TRADEMARK RIGHTS – YOU MUST USE ‘EM OR LOSE ‘EM
