Global Perspective On Filing Trademark Registrations

The United States (along with Canada, Australia and a few other countries) is a "first-to-use" territory. This means that trademark rights begin and belong to the first entity that uses a specific trademark in interstate commerce. Merely coining a brand name or incorporating one's business under a tradename does not sufficiently satisfy the use in commerce requirement — the trademark must actually be used in connection with the promotion or sale of goods and/or rendering of services in order to qualify as trademark usage.

Being the first to obtain trademark rights in a certain territory is known as having "priority." In the United States, a senior user can assert priority rights to object to a junior user's registration (for up to five years from the date of that registration) of an identical or a confusingly similar mark, even if the senior user never obtains a federal trademark registration. While a federal trademark registration confers many benefits, including a presumption of trademark validity and the possibility for a trademark to become incontestable, the ability to rely on common law (use-based) trademark rights offers substantial protection to even an unregistered trademark owner.