When Does Your Trademark Protection Begin?

April 27, 2018 | In

When Does Your Trademark Protection Begin?

We’ve had the opportunity to talk about how vital a legal tool Trademark is for any company out there.
Not only does it promote your brand and provide differentiation in the market.But it also protects your business from others trying to confuse your customers with subpar goods and services. It may also prevent con artists from trying to pass their products as your own.
trademark protection
Simply put, a trademark is your best legal recourse to keep the elements that identify your company in the market safe.
Once you understand the significance of filing a trademark for elements such as your company’s name or logo, you probably move to the next stage of interest relating to the subject, and ask yourself When does trademark protection begin? Many will be surprised, but in the US, a trademark is created upon the use of the trademark as it is used on the goods or in connection with the services in commerce, even if an application is NOT filed.  That type of trademark rights is called “common law” trademark rights.  However, common trademarks rights are limited in several ways, most notably it typically only provides protection to the geographical region in which users can be proved.  On the other hand, filing a federal trademark application with the United States Patent and Trademark Office (USPTO) conveys much greater protection and rights if the application is approved for a registration.
Also Read: What Is An Asset Protection Trust?
As with any legal process of significance, obtaining a trademark doesn’t happen overnight.
While your submission is reviewed, processed, and conditions are met on your end, several months will pass between the time you make your submission. Which is the main reason why we recommend you to get the proper legal advice on your particular situation and get your trademark process going as soon as possible.
Furthermore, these timeframes will most likely vary depending on how the trademark application is filed, and the hurdles the process might encounter during a review.
When does trademark protection begin? As discussed above, common law rights accrue from the moment of use in commerce.  In regards to Federal rights, the answer really is it depends. However, I’ll give you a quick overview of the two most likely scenarios you and your company will encounter with a very broad estimate of how much time may elapse from submission to approval.
To assist with visualization, I’ll share the graphical timeline the USPTO has on the subject.Do keep in mind that – just like they mention on their site – these charts do not contain every possible scenario and are intended to just offer you a general outlook on the process.
Also, keep in mind that these estimates assume you will respond immediately to any payments, documentation, and request made by the USPTO as your process is reviewed.

Scenario 1: Currently using your trademark in commerce

Timeframe: Between 7 months and a year.

This type of submission – Section 1(a) – is the one you file if you are already using your intended trademark in interstate commerce. If everything goes without a hitch, your application is given a USPTO serial number upon submission (which you can use to check the status of your application), then it is handed to an examining attorney at the USPTO that determines if federal law permits the trademark to proceed to registration. If everything goes well, the USPTO publishes your trademark in the Trademark Official Gazette.
Then, if no objections are filled (that is, no other company comes forward stating this trademark harms their business) within a 30 day window after publication, the application will soon thereafter mature into a trademark registration and you will have an official federal trademark registration and all the rights that associated with it.
This is the basic outline of a Trademark submission using Section 1(a).But as I mentioned there are several instances where your process might encounter hiccups and require further action on your side, to check other possible scenarios that might prolong this process, check this flowchart on the USPTO site.

Scenario 2: Intention to use a trademark in commerce

Timeframe: Between 8 months and 2.5 Years

This is the type of submission you do if you have a trademark you know you will use in the future but aren´t using at the moment of filing. You do this when you want to get a head start on the process and, most importantly, you’d like your brand to be safeguarded by Trademark law as soon as possible.
The general approval process isn’t too dissimilar with scenario 1, except that if everything goes well, generally after two months from the date your Trademark was published without a third party opposition, the USPTO issues a Notice of Allowance (NOA) for it.
A NOA isn’t a registration, but it means you trademark already made it past the 30 day opposition period without any opposition from third parties and will be allowed to register after you file a Statement of Use (SOU) within the required timeframe.
After that, you can prolong the process by filing extension requests for up to 30 months or submit your SOU to get your trademark registered after it’s being used in commerce. You can check the USPTO flow chart on other delays the process might suffer here.
Keep in mind that these are just two of a handful of different scenarios relating to several different types of Trademarks a company may need. If you are wondering When does trademark protection begin in cases of owning a foreign trademark and other particular setups, please check the USPTO site for a detailed account and timeline of those processes.