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 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.

How to Apply for a Trademark

A trademark is a distinct design, symbol and/or phrase that distinguishes and identifies the services and goods of a company from other entities. Registering a trademark with United States Patent and Trademark Office (USPTO) gives a business exclusive use of the mark. It also gives businesses the right to use the federal registration symbol for trademarks. The USPTO offers online registration of trademarks.

What Is a Trademark's Duration?

A trademark identifies a particular manufacturer of goods, using a particular phrase, design or symbol. Designs, words or symbols used to identify a provider of services are called service marks, although there is no practical legal difference between trademarks and service marks. The mark ensures consumers can easily identify a particular company as the source of a product, and encourages brand loyalty. It also distinguishes and sets apart a particular company’s goods and services from others. This encourages companies to maintain consistent quality standards in the goods and services they produce. In some cases, trademark protection extends beyond words or symbols, encompassing "trade dress." For example, if a fitness drink company packaged its drinks in unique, triangle-shaped bottles, that shape would be entitled to trademark protection.

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