Priority date determines who wins trademark disputes. US is "first-to-use" - actual commercial use establishes rights. Most world is "first-to-file" - application date matters, not use. File fast in first-to-file countries. Use before filing in US. Systems differ - strategy must adapt.
First-to-Use (US System)
Use creates rights: In US, trademark rights begin when you use mark in commerce, not when you file. Can have enforceable rights without registration. Registration adds benefits but isn't required for rights.
Registration benefits: Federal registration provides nationwide constructive notice, presumption of validity, federal court access, customs recordation. Use-based rights are geographically limited.
First-to-File (Most Countries)
Filing creates rights: In EU, China, Japan, most countries - whoever files first wins, regardless of prior use. No registration = no rights. Trademark squatting is real risk.
Use not required: Can register without using. Maintain registration without immediate use (cancellation risk after 3-5 years). Strategy: File where you might do business, before you do business.
China Trademark Strategy
First-to-file extreme: China's trademark squatting problem is severe. Local actors register foreign brand names before foreign companies enter market. Must file proactively, years before China expansion.
Defensive filing: Even if not selling in China, file there. Manufacturing = trademark relevance. Counterfeits originate = trademark needed. Cost of filing < cost of losing name.
Paris Convention Priority
6-month window: File in home country, then claim priority in other Paris Convention countries within 6 months. Later filing treated as if filed on home country date. Powerful strategic tool.
How it works: File in US on January 1. File in EU on June 15 claiming US priority. EU application treated as January 1 filing for priority purposes. Beats anyone who filed between dates.
Madrid Protocol Priority
International filing: Madrid Protocol allows single application designating multiple countries. Priority date is international application date. Efficient for multi-country filing.
Dependent on home registration: Madrid filing depends on "basic" home registration for first 5 years. If home registration cancelled, international registrations fall. Called "central attack" risk.
Intent-to-Use (US)
Reserve priority without use: US allows filing based on "intent to use." Establishes priority date before actual commercial use. Must actually use and file Statement of Use before registration issues.
Extension strategy: Can extend ITU filing up to 3 years (six 6-month extensions at $125 each). Holds priority date while developing product. Competitor can't jump ahead during development.
Priority Date Evidence
Document first use: In US, first use date matters. Save dated invoices, advertisements, website archives. Proof of use date = proof of priority. Evidence degrades - capture now.
Filing date certainty: In first-to-file countries, filing date is official record. Less evidence burden. But must file quickly - no grace period for use-based priority.
Constructive Use Date
Registration benefit: US registration creates "constructive use" nationwide as of filing date. Even if actual use was limited geographic area, registration priority extends nationwide.
Blocking juniors: Anyone who started using after your filing date is junior user. Your registration priority trumps their actual use. File early to maximize priority scope.
International Strategy
File home country first: Establish priority in home market. Use Paris Convention to extend priority abroad. 6-month window allows strategic sequencing.
First-to-file urgency: In key first-to-file markets (China, EU), file immediately after brand decision. Don't wait for product launch. Filing is cheap compared to losing name.
Common Mistakes
Waiting for launch: "We'll file when we launch." In first-to-file countries, you may lose name before launch. File during development, not after.
Ignoring international: US first-to-use system creates false security. Rights don't extend abroad. International filing requires different urgency.
Missing priority window: Paris Convention 6-month window is hard deadline. Miss it = lose priority claim = start fresh in each country. Calendar it carefully.
Trademark Lens checks availability before filing - priority date only matters for names you can actually register. Clear availability first, then file fast.