What Does "Date of First Use" Mean on a Trademark?

By Victoria McGrath

The first company to use an trademark secures exclusive ownership rights in the trademark. The "date of first use" refers to the date a trademark owner uses an original mark to identify his goods or services in the marketplace. A trademark includes an original mark, sign, symbol, word or design -- or a combination of words, phrases or designs -- to identify and distinguish a company's goods and services from its competitors. Trademarks help the general public identify their preferred products in the marketplace. The exclusive trademark rights depend on the originality of the mark and the date of first use in commercial trade.

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.

Trademark Registration

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.

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Trademark Infringement

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.

Use-Based 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.

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Are All Trademark Names Legally Protected?


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How to Obtain a Trademark

You obtain a trademark by using a logo, word, slogan or design that is associated with a product or service provided by your business. The key to establishing a trademark is using it actually and continually in commerce. The strength of your trademark rights depends on the uniqueness of your trademark, how long it has been in use and the size of the geographical area where the trademark is used. Although not legally required, registering your trademark with the United States Patent and Trademark Office (USPTO) provides the maximum legal rights and protection for your trademark.

How to Get a Trademark for a Comic Book Superhero Character

Trademarks cover comic book characters' names and logos. Any character's name or logo used on products offered in commercial trade may qualify as a trademark. A trademark generally contains any combination of original words, signs, symbols, phrases and designs. A trademark may not contain generic or merely descriptive terms, such as "bat" or "man". However, the character name "Batman" qualifies as a unique combination of words and the Batman logo qualifies as a unique design. Registration of comic book character names must not infringe on other trademark owners' rights.

Do I Need to Trademark My Clothing Lines?

A clothing line owner automatically gains trademark rights in its name, logo and slogan. Trademarks include any unique mark, word, sign or symbol associated with the company's clothing line products and services. The trademark owner may use the original mark on its clothing in a fashion show, clothing display, online store or any marketing materials in order to automatically qualify for trademark rights and protection. State and federal trademark registration are optional. In addition to trademark rights, a clothing line also holds copyrights in its clothing designs, fabric prints and graphic artwork. Copyright registration can deter other clothing labels from illegally copying a clothing line's designs and selling them as their own.

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