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Trademark Q&A: Can I start using my mark before my trademark is registered?

Have you ever wondered if you can go ahead and use your trademark before your mark is actually registered with the USPTO? Today's Q&A will help you figure that out.

Q: I'm planning on opening an e-commerce store, and have a mark that I want to register in the US. I plan to use the mark on my website, labels, marketing materials, and on some merchandise. I was told that it can take up to 2 years to have a trademark registered, which I was surprised to learn. While I am waiting to get my trademark registered, can I get my branding and marketing materials made with the mark? How about inventory? Should I wait until my mark registers?

Answer: First, unless there is a big issue with your trademark, it will not take 2 years to secure your mark. In my experience, when I spend the time up front with my clients doing research and proper analysis of the research, my clients rarely wait longer than 8-12 months to get their registration.

But you don't have to wait that long to use the mark. In fact, "use" is what gives you priority rights in the mark, assuming it isn't already being used by someone else. A good trademark attorney will be able to help you figure that out before you put too much time and money into branding or inventory.

The first step is have an experienced trademark attorney do "knock out" research to make sure the word you want to use really is available to you. An experienced trademark attorney can do very quickly for you, so it won't slow down your momentum much. I always provide that service for my trademark clients who are in the process of just starting their business. It can save a lot of frustration and expense, and will help you avoid problems by making sure a mark is available to you before you start using it (and spend the money on branding your labels, hang tags, website, marketing materials, etc...).

If the mark appears from the knock out research to be available, you can have your trademark attorney begin the deeper dive into the research and then prepare your application. While "use" gives you priority rights, getting on file quickly gives you that name reservation you are hoping to have because it puts you at the front of the line with the USPTO for that mark (in your industry). That is important because it then puts others on notice that you are claiming a trademark, and prevents them from filing first in the same or confusingly similar name, which could force you into a dispute about who has priority rights in the mark. You want to avoid disputes, if possible, because even disputes you stand to win can be expensive and disruptive before they are resolved.

If the mark appears to be available after your attorney does her research, you should feel comfortable starting to build your branding and marketing materials, and getting on with the process of launching your brand. No attorney can guarantee success, but one who does their homework before they file for you will have a pretty good idea of what to expect, and so you are unlikely to have big surprises during examination.

If you need assistance with making sure your brand is available to you AND making sure you are not infringing on another trademark owner's rights, set up a free consultation with me here:


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