You Registered Your Trademark. But Do You Actually Have Priority?

Here's a scenario I see all the time. A business owner comes to me thrilled about their brand, then they find another company using a strikingly similar name. Their first instinct is to send a cease and desist letter. That's typically the first response, but before you send that letter, there's a more important question: do you actually have superior rights to the mark?

In the United States, trademark rights come from actually using your name in commerce, selling products or offering services under the trademark, not from who filed first. The legal term is "use in commerce," and it surprises a lot of people who assume registering a name automatically locks it down.

A company using a mark, even without a federal registration, may hold common law rights in the areas where it operates, and those rights can outrank someone else's later registration. When we talk about who wins a dispute, we're really asking who has superior rights: who used the mark first, where their rights reach, and whether the marks are close enough to confuse customers.

Why this matters before you send a cease and desist.

A cease and desist letter is powerful, but it only works from a position of strength. If you send one and it turns out the other side has superior rights, you may have tipped them off, invited a challenge to your own mark, or exposed yourself to a claim if the letter overreached.

Confirm your own priority first. Then decide whether a letter, a negotiation, or another path makes sense. A letter should be the result of a strategy, not the start of one.

When you have a registration, you have more options.

If your mark is federally registered, a cease and desist letter isn't your only tool. Federal registration gives you the right to bring an infringement action in federal court, and it gives you a legal presumption of ownership and validity, depening on your registration. That presumption makes your case significantly easier to bring and can be a powerful advantage in negotiations, even before a lawsuit is filed. It's one of the biggest reasons I push clients to register early. Without a federal registration, your trademark rights are typically limited to the geographic areas where you are using the mark and have established your trademark as source-.dentifier.

This is why your "first use anywhere" and "first use in commerce" dates matter beyond just filing an application. You want to be sure to have and keep accurate records of your first sales, started offering your services, andwhen you launched your brand in connection with your trademark. It will be much easier to demonstrate whether your have priority over your trademark.

If you're not sure whether you actually have priority, or you've spotted someone using a name a little too close to yours, that's the moment to talk to a trademark attorney, before you act, not after.

Thinking about protecting your brand, or worried someone's infringing on it? Let's make sure you're on solid ground before you make a move. Book a consultation

USPTO – Why Register Your Trademark