QUESTION
A company with the same mark as us filed a trademark the same day as we did, is there anything I can do if they get filed and I do not?
Asked on Apr 29th, 2014 on Intellectual Property - California
More details to this question:
I know for a fact that I filed before the other company for the applied for mark, I checked every day for a week, and chose a day to file, making sure someone else did not already apply. After I finished filing a TEAS Plus form, I checked again. Nothing. I looked a few days later to see if anything had been processed yet, and to my surprise, another company had filed for the same mark as us the same day as us. Their serial number is before ours, which I understand means they will be filed completely and we will be denied when it comes down to it. Just because there serial number is before ours does not mean they filed before us on the same day or even the same day at all, or so I'm assuming. I'm sure filed for marks do not enter an organized "at-the-dot" system right off the bat. Is there anyway I can prove that we filed first? Because I am confident that we did.
1 ANSWER
First, if the other company has a lower serial number than yours, then they filed their application first. The fact that it did not appear in the USPTO online system does not mean that it was not already on file since there is a delay before newly filed applications reach the system.
However, who filed first is not the key issue since the US is a first to use, not a first to file, system. Thus, if your date of first use (assuming you did not file an intent-to-use application) is earlier than the other company's date of first use, if any yet, then you would have priority over the other company.
Not mentioned by you is whether or not the other company has filed for the same goods and/or services as you have. If not and the goods/services are unrelated, it is possible that mark could be registered to both of you.
Answered on Apr 30th, 2014 at 10:29 AM