Understanding the Filing and Effective Filing Dates for Trademark Applications in the USPTO

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Edited by Daler Radjabov, Esq.

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When an individual files a trademark application with the United States Patent and Trademark Office (USPTO), the filing date is determined by the date on which all necessary elements, as outlined in 37 C.F.R. §2.21(a), are received. However, this date may not be the same as the effective filing date, which is used to determine priority for publication or issuance and constructive use priority. The effective filing date is equal to the filing date unless the applicant is entitled to priority under 15 U.S.C. §1126(d) or §1141g, or if they decide to amend an intent-to-use application to the Supplemental Register. In addition, if an application was filed prior to November 16, 1989, and the applicant had not used the mark in commerce for at least a year before the application filing date, and they decide to amend to the Supplemental Register on or after November 16, 1989, the effective filing date will differ.

Constructive use priority is established when any application for registration on the Principal Register, including an intent-to-use application, is filed and eventually matures into a registration. This grants the applicant nationwide priority over others, unless they used the mark before the applicant’s filing date, filed in the USPTO before the applicant, or are entitled to an earlier priority filing date based on the filing of a foreign application under 15 U.S.C. §1126(d) or §1141g.

In the case of a request for an extension of protection of an international registration to the United States under 15 U.S.C. §1141f(a), the filing date is either the international registration date if the request is made in an international application, or the date that the subsequent designation was recorded by the International Bureau of the World Intellectual Property Organization if the request is made in a subsequent designation.

It’s important to note that just because a filing date has been granted does not mean that all requirements for registration have been satisfied. It is possible that registration could be denied on a substantive ground. If the applicant overcomes any substantive denials and meets any procedural requirements issued by the examining attorney, they may obtain a registration.

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