Every day, thousands of businesses register new trademarks — names, logos, and symbols meant to represent their brands. But registration alone doesn’t guarantee ownership. The legal doctrine of trademark priority determines who keeps a mark and who must rebrand based on one crucial question: who used it first?
Each successful trademark claim rests on solid evidence. Receipt records, old advertisements, shipping labels, business contracts – these mundane documents can make or break a company’s right to its identity. The system rewards innovation and careful documentation of a mark’s history in commerce.
With millions of active trademarks worldwide, overlap is inevitable. Let’s examine how trademark priority works, why filing dates matter, and what steps you can take to secure your rights.
What is Trademark Priority?
Trademark priority refers to a legal principle that allows brands to backdate trademark applications made in other regions to the date they first filed for a trademark in any other country. It means that you can apply for your trademark in the United States before applying for international trademarks, and then leapfrog trademark applications in other countries by claiming priority with your U.S. filing date.
Trademark priority allows brands to delay filing in other regions in order to spread the cost of trademarking over time, or to clarify brand strategy before expanding their trademark’s claim. However, trademark priority does have a time limit: you’ll have to file further applications within six months of your first application in order to backdate your trademark.
This system helps prevent trademark squatting and rewards genuine business activity so, for example, UK brands can’t watch American trademarks and then claim the same name before the US company trademarks it.
Claiming priority is simple, and you’ll just need to provide evidence of your original application when you file at the relevant trademark office, for example, the Intellectual Property Office in the UK, and the EUIPO in the EU.
First to File vs First to Use Systems
Countries are split into two camps when it comes to trademark rights. First-to-file systems, common in places like China and Japan, prioritize whoever registers the trademark first. If you file before anyone else, you get the rights, regardless of who has used the mark.
The U.S. takes a different approach with its first-to-use system. Here, using a name or logo in commerce creates rights, even without registration. A small coffee shop could win a dispute against a large corporation that registered the same name later, provided they can prove earlier use.
First-to-file makes ownership clear but can lead to trademark squatting. First-to-use better protects small businesses that have built local recognition but haven’t registered yet. For businesses operating internationally, these differences matter — a U.S. company might have solid rights at home based on use, but could lose its mark in China if someone else files first.
Trademark Priority Under the USPTO
The United States Patent and Trademark Office (USPTO) allows foreign-made trademark applications to be backdated by up to six months based on trademark priority. If you trademarked your name in France on 1st January 2025, you can register that name as a trademark with the USPTO before 1st July 2025, and the application will be treated as if it were made on the 1st of January.
This allows foreign brands to build regional brand recognition before moving into international markets.
To claim trademark priority with your application in the USPTO, you’ll need:
- filing date,
- serial number,
- foreign country of the first regularly filed foreign application,
The list of goods and service categories you are registering for with the USPTO cannot exceed that of which you filed in your initial application.
You can read more about the USPTO’s filing basis here.
Does Filing First Matter?
Filing first for trademark registration matters in both first-to-use and first-to-file systems. While the U.S. prioritizes actual use, getting your application in early still gives you significant advantages.
When you file an intent-to-use application with the USPTO, that filing date becomes your priority date once you start using the mark. This means you may have rights over anyone who started using the mark after your filing date — even if they beat you to market.
In first-to-file countries like China, early filing becomes even more critical. Whoever files first gets the rights, regardless of prior use. Smart businesses file applications before launching their products or services, securing rights early across different trademark systems.
Protecting Your Trademark Rights
After securing your trademark rights, monitor the marketplace regularly for potential infringement — from similar product names to copycat logos. Set up Google alerts for your mark and check trademark databases periodically for similar applications.
Document everything about your trademark use. Keep records of first-use dates, sales data, advertising materials, and customer communications. These records prove invaluable if you need to defend your rights or oppose someone else’s application.
Police your mark consistently. When you spot potential infringement, send cease-and-desist letters promptly. Failing to address violations can weaken your rights over time.
Be sure to consistently maintain proper trademark usage in your materials. Use the ® symbol for registered marks and ™ for unregistered ones. Make your mark stand out from any surrounding text, and use it as an adjective rather than a noun.
Lastly, remember to file renewal documents on time. The USPTO requires maintenance filings between years 5-6 and every 10 years after registration. Consider international protection if you plan to expand overseas – many countries offer a 6-month window to claim priority based on your U.S. filing date.
Wrapping Up
Trademark priority rules shape how businesses protect their brands in the U.S. and globally. They allow brands to strategically enter markets at different times without risking their brand’s protection and to spread the cost of trademark applications over a longer period.
Strong trademark protection starts with thorough research and early filing. Each day without proper registration leaves your brand vulnerable to competitors or trademark squatters. The risks multiply when expanding internationally, where different priority rules apply. Missing key filing deadlines or overlooking similar marks can force costly rebranding or legal battles.
Ready to secure your trademark rights? Our Trademark Research service examines USPTO records, common law usage, and international databases to spot potential conflicts. We’ll help you understand your priority position and registration options.
