Date of First Use
A trademark owner automatically secures exclusive trademark rights in his original mark, once he uses the original mark to identify his specific goods or services in the marketplace. The creator must be the first one to use the original mark in the marketplace, in association with his goods or services. He must also offer his goods or services in the ordinary course of business. The ordinary course of business includes local and national business, as well as international business between the United States and a foreign country.
The date of first use of a trademark establishes exclusive ownership rights in the original mark prior to trademark registration. Optional trademark registration offers additional security against trademark infringement. Federal and state trademark registration provides a public record of trademark usage and informs the general public of the designated use. The federal trademark registration application includes a sworn affidavit regarding the date of first use of the trademark.
The court determines who holds exclusive trademark rights based on the date of first use of the original mark in the marketplace, in association with the rightful owner's specific goods and services. The original owner needs to prove an earlier "date of first use" to prevail. The federal registration provides a legal presumption of exclusive trademark rights, including evidence of the date of first use based on the signed affidavit and the sample of the original mark submitted with the trademark registration application.
Federal trademark registration includes four types of registration applications, one of which is a use-based application. A use-based application requires the trademark to be used in commerce prior to the date of application. An application based on use in commerce must include a statement of actual use in commerce, the date of first use anywhere, the date of first use in commerce, and a specimen or sample of the trademark on the goods or services as offered in the marketplace.