What Are Your Trademark Rights While Your Application Is Pending With USPTO? - Drishti Law

United States Trademark and Patent Office (USPTO) is, at a given moment, dealing with around 325,000 trademark applications, which implies that there are several pending applications with the trademark office. Although the protection afforded to a registered trademark owner would not be the same for one with a pending application, the situation is still not that hopeless. This blog will elaborate on how you can maximize your trademark protection even with a pending trademark. 

What is a Pending Application?

A trademark is any symbol, logo, word, slogan or design which represents a brand and acquires legal protection through registration with the USPTO. A pending application, as the name suggests, is still under the process of review by the USPTO, and after approval, would grant the mark with official protection. There is a chance that the application will be rejected and the mark is not registered. 

Protection for a Pending Trademark Registration

 A Trademark Electronic Search System (TESS) is a service provided by the USPTO which can be used to check the status of a trademark application. It is highly emphasized for owners or businesses to conduct a trademark search before filing their application as this would prevent them from applying for a mark which is similar to other trademarks, either registered or pending. Although it’s a basic and optional step in the application process, it still grants some form of guarantee to the applicants and registration owners that potential applicants would refrain from infringing the mark by conducting due diligence beforehand. 

Legal Protection provided by the “™” Symbol

Companies are allowed to use the ™ symbol with their mark even if their application has not been registered yet, but the protection is not substantial and the intellectual property rights cannot be legally enforced for the mark. On the contrary, the “®” symbol is used by the registered brand owners for their trademark to indicate that their trademark is registered with the USPTO and has the protection of legally enforceable intellectual property rights, thereby deterring potential infringement. The law only allows the registered owners to use the latter symbol in their brand name. 

What Advantages do Pending Applications hold?

The aforementioned discussion appears as a discouragement for pending applicants – and, indeed, pending applications do not have the same level of protection as the registered ones – it is not a lost cause. Pending applications do have certain advantages. Some of them include:

Pending Application reserves a spot with the USPTO

Although nothing is final until the trademark is registered by the USPTO, a pending application provides an advantage to the applicants by ‘reserving’ their spot in the USPTO registry. A pending trademark prevents others from registering an identical or similar trademark. The demands in the marketplace are ever-evolving. Any symbol, any word, or any catchphrase uttered by any person can suddenly achieve popularity amongst people and become a potential source of profit. Goodwill and reputation hijackers might try to make a profit for themselves by trademarking those words or images. Brands or individuals, to whom the intellectual property belongs, can file for trademarking them and secure their source of profits right away, without waiting for the registration stage. 

Filing Date plays a pivotal role

Trademark applications with earlier filing dates are always at a huge advantage in the registration process and even in lawsuits. While a pending application does not provide as much protection as a registered one, you gain leverage by securing an earlier filing date. In future, if a brand has filed for registration but has not received approval and a subsequent brand registers the same trademark and can acquire registration, then the former brand can sue the latter on the grounds of an earlier filing date and can request for revocation of their registration. 

Pending Trademark Applications as deterrents for potential infringers

As stated above, pending trademark applications indicate that the mark has been claimed and therefore, deter other companies from taking it. Even by placing the ™ symbol with the brand name is enough to acquire protection in the market (despite its limited nature). The symbol also helps in conveying the legitimacy of your brand to the consumers. 

Additional Steps for Protecting your Pending Trademark

Brands can take additional steps for the protection of their intellectual property. One of the ways is that brands can consider applying for international registrations as this can assist in solidifying their application for federal trademark in the U.S. Another way brands can enhance their trademark protection is by filing applications for its variations also. This is specifically recommended if there is a threat that a rival company might usurp the goodwill and reputation of the original owner by using the variation. 


Pending trademarks might have a limited range of protections for brands however they are not completely useless. Brands can incorporate the abovementioned steps during the application stage to maximize the benefits from their pending application. 

If you require help with your trademark application process, seek the help of an experienced trademark attorney. You can schedule a discovery call with us at Drishti Law. During this call, we can discuss your situation in more detail and come up with a plan tailored specifically for your application.