Using trademark before registered [Updated]



Last updated : Aug 4, 2022
Written by : Angelena Kreiter
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Using trademark before registered

Can I use TM without registering?

The (TM) symbol actually has no legal meaning. You can use the symbol on any mark that your company uses without registering it. The most common use of the TM symbol is on a new phrase, logo, word, or design that a company plans to register through the USPTO.

Can I use my trademark while its pending?

A trademark pending status is an interim solution for protecting your intellectual property. You can use the trademark or service mark symbols with your design, but you need to make sure you file the trademark application as soon as possible.

When can you start using a trademark?

In the U.S., a business gets common law rights to a name as soon as it is used in commerce. That means that as soon as you start selling a product or service, you can claim common law ownership of that trademark without formally registering it with the U.S. Patent and Trademark Office (USPTO).

Why use an unregistered trademark?

The biggest reason why unregistered trademarks are important is that they provide no protection in legal matters outside of local or state government. If you are using an unregistered trademark that represents your business in a small geographic location, you may be able to stop them.

Can we use trademark after application?

Once you have filed the trademark application, the Symbol “TM” can be used with your products. The symbol “R” can be put into use only after you have obtained registration of your trademark.

Can you use trademark before approval?

Before your application is approved for publication You may claim use in commerce between the date you filed your application and the date the USPTO examining attorney approves your mark for publication in our Trademark Official Gazette (TMOG), a weekly online publication.

How do I know if my trademark is approved?

It is fairly easy to check your trademark registration on the USPTO website, at http://tsdr.uspto.gov/. Enter your trademark serial or reference number on the Trademark Status and Document Retrieval (TDSR) page to receive the status of your pending and registered trademarks.

Can you trademark before selling?

Do I have to register my trademark before I start selling? No. You almost never “must” register a trademark. It is good business practice to protect yourself (from claims of infringement by others, but infringement of your rights by others) to register, and it helps to build value in your business.

Can you trademark a name already in use but not trademarked?

1. Can You File for a Trademark That Exists? Updated November 12, 2020: If you're wondering, "can you trademark something that already exists," the simple answer is "no." Generally speaking, if somebody has used a trademark before you, you can't register the trademark for yourself.

How long does an initial trademark last?

A federal trademark lasts 10 years from the date of registration, with 10-year renewal terms. Between the fifth and sixth year after the registration date, the registrant must file an affidavit to state that the mark is still in use.

What happens if a trademark is not registered?

Passing off Action for unregistered mark In case of misuse of a registered mark, the right holder can initiate an infringement action against the violating party. But for misuse of unregistered marks, the right holder is entitled to claim protection under the law of passing off.

How long does an unregistered trademark last?

In the United States, a federal trademark can potentially last forever, but it has to be renewed every ten years. If the mark is still being used between the 5th and the 6th year after it was registered, then the registration can be renewed.

Can you enforce an unregistered trademark?

An unregistered mark can only be enforced within the geographic area where it is used in commerce. The first user of the mark will have priority over other users. Much of the inquiry of infringement of unregistered marks revolve around the use element of infringement.

What's the difference between TM and R?

You do not have to have registered a trademark to use it and many companies will opt to use the TM symbol for new goods or services in advance of and during the application process. The R symbol indicates that this word, phrase, or logo is a registered trademark for the product or service.

Is it mandatory to register trademark?

Unlike other legislation of various different countries, registration of a trademark is not mandatory in India. An unregistered trademark is also protected and has certain benefits. However, an unregistered trademark does not possess the statutory right of infringement.

Can I trademark a name already in use but not trademarked India?

Yes, as trademarks are territorial, you may trademark a logo in India even if a similar trademark is already registered to your competitor in the USA. However, you will have to ensure that your competitor has not trademarked the same logo in India, otherwise it will not be possible to get the same logo.

Should I trademark my business name before I start?

In most cases, the best time to file a trademark application for your business name is right after you've filed paperwork to form your LLC or corporation. By doing this before your business officially launches, it protects the name for commercial use once you're up and running.

Is trademark first to file or first to use?

Trademark rights generally belong not to the first trademark filer, but the first user. In the US, trademark rights generally go to one who was first to use the mark in commerce, meaning that whoever was first to use a mark on certain goods or services would be presumed the lawful owner of the trademark.

Should you trademark your business name or logo first?

Trademark Application Timing It is a good idea to begin the process of trademarking your symbol, slogan, logo or image as soon as humanly possible. Businesses can submit an “intent to use” application even before they begin using the symbol, slogan, logo, or image.

Why do trademarks get denied?

A mark will be refused as deceptively misdescriptive if (1) the mark misdescribes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services; and (2) the misrepresentation conveyed by the mark is plausible.


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Using trademark before registered


Comment by Annetta Drzewicki

hey everybody Robert right here private-label law attorney and today I'm going to answer the question can I register my trademark before I'm actually in commerce so we know that in order to register trademark you know trademark rights arise upon use in commerce meaning as soon as you take that product that you're selling put your branding on it and get it to market you have certain trademark rights now those rights are geographically limited right you don't even have to register we've talked about that in other videos you know we have to register trailer to have one as soon as you take that mark you put it on the product and get it to market you have rights now as private label sellers we especially if you're early on in your private label journey we have a lot of things going on right like you're still working through the course you're negotiating with suppliers you're trying to choose your branding you're trying to arrange logistics you're getting samples like all of this stuff is going on right but it couldn't be that in the midst of this you know what your private label is gonna be you know what your brain is gonna be and you want to make sure that you lock it down because oh by the way you've also heard the best-case scenario here in the States takes about nine months to get a trademark register the registration through right and you want to run your registration efforts in parallel to your getting to market efforts so the question is if you know that trademark rights arise upon use all right you know that is there a way that you can kind of jumpstart the process skip to the front of the line start the registration in advance of getting the market and the answer is yes okay the patent trademark office offers something called an intent to use application right so if you have a good-faith intent to use a mark in commerce right in a short period of time like in the next six months sort of period right you can go ahead and work through the entire prosecution process you fill out the application just like you would if you were actually a market it will be examined just as if it were an actual use based application the only difference is is it makes it through that process at the end instead of getting a registration certificate you'll get what's called a notice of allowance so basically that's the trademark office telling you what everything looks good here your application cuts muster it we're good to register you but you've got to show us use ok and at that point you're in a circle back with the Trademark Office you're gonna provide a specimen you're gonna provide them with an example of your using the marking Commerce and then and only then are you gonna get that registration number right so obviously a lot of positives to filing on an intent to use basis right you get to get together skip to the front of line your registration efforts are in parallel to your getting to marking and market efforts order the down signs well there's an additional filing fee right you're still paying the same filing fee that everybody else is up front right and working through the examination process and then on the back end you know once you provide that example of you use that specimen you're gonna have to provide a filing fee as well right there's it's it's a smaller filing for you but it's a filing fee nonetheless so if you are a little tight on cash you're trying to bootstrap your efforts and what you're gaining in speed you're losing and filing fees now frankly you know given that it takes so long to get to registration in nine months again if everything goes well the benefits of brand registry being what they are I you know if you have the means I highly recommend kind of going the intent to use route just because it does create some degree of efficiency in your business so it answer your question you know can you file an advance of getting the market absolutely it's called an intent to use application and I highly recommend it if you have the means


Thanks for your comment Annetta Drzewicki, have a nice day.
- Angelena Kreiter, Staff Member


Comment by Jordan

hello my name is Ruth Carter and I'm a licensed attorney in Arizona and this is your question of the day somebody asked me they said I've been selling a shirt with the phrase wick size matters to candle makers and recently someone filed a trademark for that phrase can they get this phrase trademarked and if so can I fight to have it taken since I was selling this shirt a year before they filed okay I hate when stuff like this happens where somebody's using a trademark they don't register it and someone else comes along and registers it behind them because when that happens the person if they get the registered trademark they are allowed to use it everywhere in the u.s. except where you've established your geographic market so you're allowed to keep using your trademark in those areas but you can't expand they can't come into your area when we're talking about online businesses where it's really hard to delineate like where the markets are it's a lot more challenging and if you're an online seller you're naturally going to be expanding your market just by the fact that you're available online so what it basically does for somebody like you is it forces you to shut down your business because you're not allowed to expand but by continuing to exist you're going to expand so no sorry I hope this is a learning experience to anybody in this type of situation go register your trademark first so that you don't deal with this later now what can you do now that this has happened there are options to file if this someone is still in the process of getting the trademark you can file what's called an opposition and if you are in a situation where someone has already gotten the trademark registered you can file for a cancellation and ask the USPTO to basically unregister their mark because you've established yourself so much in the US that they shouldn't be allowed to have it now you have to be able to establish that you have such a big Geographic market that there really is no other place for this company to go so within the US so it's it's a little bit more complicated when you're dealing with the situation where you don't have a registered trademark that being said it is possible there are things you can do but no guarantees so I recommend you talk to a lawyer in this type of situation because it really does come down to the specifics of your situation because watching this video does not create an attorney-client relationship with any viewer it's merely legal information not legal advice if you need legal advice please go hire somebody that's all I have on this topic for now please subscribe to the channel I put out new content every week and until then I will catch up with you later take care


Thanks Jordan your participation is very much appreciated
- Angelena Kreiter


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