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Trademark Priority

Jim Ruttler, Patent Attorney

Posted Monday, June 9, 2008 by Jim Ruttler

A registered trademark may still be cancelled based upon a demonstration that the trademark was previously used by another. For example, assume party A began using the trademark Xenon to sell household furnishings beginning in 1990, but party A failed to register Xenon. Next, assume that party B, without knowledge of party A’s use, began using the same trademark Xenon to also sell household furnishings beginning in 2000 and secured a trademark registration in 2002. Despite party B’s registration, party A can petition to cancel party B’s registration based upon the fact that party A was previously using Xenon.

The question then becomes, what is the purpose of securing a federal registration if all that matters is use. While federal registration isn’t absolute title to the mark, it does confer a presumption of ownership and trademark validity and nationwide priority. Note that party B above is the presumed owner and party A is required to take affirmative steps to eliminate party B. However, nationwide priority is perhaps the most important aspect of federal registration because a federal trademark is treated as having been used across the entire country as of its filing date. Thus, if party C begins using Xenon to sell household furnishings in a different geographic area, party B still has superior rights. This would not be the case without a federal registration because party B would only have trademark rights in the geographic area for which Xenon was used.

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