Trademark: Date of First Use

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The advantage of a section 1(b) filing

Since proof of actual use must be shown to register a trademark, you may wonder why even bother with a section 1(b) filing? To answer this question consider the following hypothetical situation:

Who has the right to use the mark?

Generally, the first filed application will be examined first. The USPTO will suspend the latter-filed application until the first application is examined. If the first application is granted, the second application will be rejected. If the first application is rejected, the second will be removed from suspension and then examined. However, there is an exception to the rule: First to use wins over first to file (with an exception to the exception-but that scenario addressed later).

Conclusion

Date of first use is a very important concept in US trademark law. However, a section 1(b) filing is a powerful mechanism to register a trademark for which an applicant has a bona fide intent of using the mark in the stream of commerce.

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