Trademarks and Copyrights

When starting a business, one of the most important steps is securing the rights to your brand name, logo, or slogan through trademark protection. But how do trademark rights work? Does the first person to use a trademark own it, or does the first person to file for registration have the upper hand? Understanding the difference between first-to-file and first-to-use trademark systems is essential for protecting your brand and avoiding legal disputes.

First-to-Use vs. First-to-File: How Trademark Rights Are Determined

The United States follows a first-to-use system, meaning that the first business to use a trademark in commerce generally has superior rights over someone who files for registration first. This differs from many other countries, such as China and the European Union, which use a first-to-file system, where the first person to submit a trademark application gets exclusive rights, regardless of whether someone else used it earlier.

The Importance of Trademark Registration

Although the U.S. follows a first-to-use system, registering your trademark with the United States Patent and Trademark Office (USPTO) provides significant legal advantages, including:

• Presumption of Ownership: A federally registered trademark serves as official evidence that you own the mark, making legal disputes easier to resolve.
• Nationwide Protection: Common law (unregistered) trademarks are usually limited to the geographic area where the business operates, while a registered trademark provides exclusive rights across the U.S.
• Legal Recourse: Trademark registration allows you to take legal action against infringers, including seeking damages and preventing counterfeit use.
• Public Notice: Registering your trademark places your brand in the USPTO database, warning others that the name is legally protected.

While first use can establish rights, the best trademark service includes conducting a comprehensive trademark clearance search, having an experienced trademark attorney prepare and prosecute your application, and successfully registering your mark to solidify your legal standing.

When Should You File a Trademark?

Since first-to-use rights apply in the U.S., it may be tempting to delay filing a trademark application. However, waiting to register your trademark can be risky. Even if you’re the first to use a name, another business could file a federal trademark application before you, leading to costly disputes.

A business name trademark lawyer can help you determine the best time to file, but in general:

• If you’ve already started using the name, file a trademark as soon as possible to protect your existing rights.
• If you haven’t launched your business yet, consider filing an intent-to-use (ITU) application, which reserves the name for future commercial use.

What Is the Average Cost of Trademark Registration?

The average cost of trademark registration varies based on factors such as the number of classes your trademark falls under and whether you hire legal assistance.

• USPTO Filing Fees: $350 per class of goods/services.
• Attorney Fees: $1,500–$3,000, depending on the complexity of your trademark and legal needs.
• Additional Costs: If someone challenges your trademark, if you are not currently using your trademark in commerce, or you need to respond to USPTO office actions, legal fees and filing fees can increase.

While it may be tempting to file a trademark application on your own, hiring a business name trademark lawyer ensures that your application is properly drafted, reducing the risk of costly errors or rejections.

In the U.S., first-to-use rights apply, but federal trademark registration offers additional legal protections that make it easier to enforce your brand’s exclusivity. Filing a trademark as early as possible can help prevent disputes and ensure your brand remains legally protected.

If you’re ready to secure your trademark, the best trademark service is one that provides expert legal guidance. Contact The Social Media Law Firm today to work with an experienced trademark lawyer and safeguard your brand’s future. Contact us for a free consultation.

---

For more legal tips, give us a follow on Instagram, TikTok, Linkedin, or check out our YouTube Channel.

Subscribe to The Social Media Lawcast on Spotify Podcasts.