Impact of Trademark Priority Dates On USPTO Registrations - Drishti Law

Trademarks are invaluable in the diverse world of commerce, mainly because they serve as a way of distinguishing different brands from each other within the same market as well as building consumer trust. When applying for trademark protection, there are many complexities in the process, the foremost being understanding the legal jargon used.

One of them is “trademark priority” which has a significant impact on the registration process. It is often the case that businesses rush to get their trademark rights registered before their rivals do so. This is where the priority date comes in handy. In this blog, we will discuss the importance of trademark priority and how to successfully acquire that for your brand.  

What Are Trademark Priority Dates?

Trademark priority is used to determine the prior ownership of the trademark. It will examine the date on which the party first used the mark in commerce and on that basis, it will be ascertained if the applicant has prior use of the mark or someone else who is in use of the exact or similar trademark.

This is determined by multiple factors, such as the filing of the intent-to-use application, or even a foreign application – which can later serve as the basis for a USPTO application. Most importantly, it helps in resolving disputes concerning conflicting trademark applications.

Establishing the Priority 

These are the ways in which you can establish the priority of your trademark.

Use In Commerce

One way to establish the priority is by showing that you use the trademark in commerce. The party that has first made use in connection with products or services will get precedence over other applicants. The purpose of this principle is to ensure the bona fide use of the mark and to ensure justice when deciding cases concerning disputes over the same mark. 

Intent to Use vs. In Use Applications

Although prior usage can be established by showing first use, the better and more effective route is to show that you are the ‘first filer’. This serves as a more concrete proof of prior usage. Not only this, the examining procedure of the Trademark Office is based on the first filed date, and not the first use. This creates a federal priority date, even if the mark is not in use yet. 

This is where the ‘intent to use’ filing comes into play. Many times, businesses have not started their operations under the mark but they have the intention to do so in future. In such situations, they opt for filing for the trademark in advance – in other words, an intent to use (ITU) trademark application – and they have a 1b filing basis as per the trademark law.

Although this does not mean that businesses will immediately get their trademark rights, this provides them with the leverage of claiming priority for getting a federal trademark registration. This is especially beneficial if there are multiple parties with the intention of using the same mark.

On the contrary, the ‘in use’ application (already discussed above) provides with 1a filing basis. Although you don’t get a priority filing date, this allows you to establish your claim over the mark. 

Establishing Priority through Foreign Applications

Businesses operating in multiple countries have the advantage of leveraging their foreign registrations as a filing basis for their US applications. If the applicant files their US trademark application within six months of trademark filings in foreign countries, they will be able to claim priority. This practice is in line with the reciprocal principle present in the Paris Convention i.e. reciprocal recognition of priority rights among member countries.

Importance of Priority Dates in resolving Trademark Registration Disputes

Priority dates play an important role in resolving registration disputes. Conflicts occur when there are multiple claimants for the same or similar trademark for the same products or services. Priority dates determine who holds the rights over the mark in opposition proceedings. Similarly, they also provide an advantage in infringement lawsuits. 

The Challenges 

Although priority dates are a systematic way to establish usage, it also has some challenges. This can include, but is not limited to, disputes over the validity of the claimed prior usage, or genuine evidence for proving bona fide and actual use. These factors can complicate your trademark registration however they can be avoided if you ensure a timely and accurate submission of evidence to the Trademark Office for registering your trademark.  

Protecting your Trademark after Registration

After acquiring your registrations, your job is not over. Now you have to protect and monitor your trademark from potential infringers vigilantly. The best way to go about this is to maintain your records of use, continuously look out for any emerging same or similar marks, and take legal action if any of the above occur. The priority date is beneficial even after registration as it records your earlier rights over the mark. 

Alternative Solution 

The alternative to protecting your mark through prior usage against third parties includes claiming ‘dilution of the trademark’ or ‘passing off’. However, its disadvantage is that it these avenues might be difficult for you to prove, thereby risking your trademark registration and protection. 


To conclude, priority dates are important in determining the successful registration of your trademark and protecting your intellectual property. By understanding the nuances of establishing and defending these dates, you will be able to accurately navigate through your trademark registration process. 

Alternatively, you can make the registration journey better by hiring an experienced trademark attorney. They would be better able to assist you in this matter, in fact, complete the whole procedure on your behalf. 

You don’t need to look further to get an attorney’s services for trademark application and registration. Book a free consultation today with Drishti Law to learn how our experienced principal attorney can help you successfully register your trademark. We provide a variety of services which can meet the specific legal needs of your brand.