When Should I File a Trademark Application?

Deciding when to file a trademark application can be a complicated process The answer is typically a few months before the time of your new business or product launch.

Earlier Priority Date

If your trademark application is registered with the United States Patent and Trademark Office (USPTO), your new trademark registration is enforceable back to the date your attorney filed the application- not the date that the application became a registration. This is called your priority date. So, the sooner you have your attorney file your application, the earlier your priority date becomes once your application becomes a registration. The earlier your attorney files your application, the sooner you can obtain an enforceable trademark registration.

Minimized Risk

The sooner you have your attorney file your trademark application, the less risk you face. Risk in this situation can present itself in a couple different ways. First, by waiting to file, you risk other marks similar to your mark being filed before yours. These marks could later cause infringement issues and registrations issues and, because they were filed first, they will have priority over your mark. Second, by waiting to file your mark, you risk exposure to copycats that will try to use a similar mark. If you have early successes with your new business venture or product, there are bound to be copycats. And, if you entered the marketplace without trademark protection, you’re exposing yourself to those copycats.

Cost of Rebranding

Ideally, your trademark will not face any infringement issues or registration issues. But sometimes issues do happen, for instance, other parties with registered trademarks can oppose your mark during its application phase. If this does happen to you, and you are forced to rebrand your new product or your company, it will cost much less to rebrand in the launching phase versus later down the road after you have sunk funds into marketing materials, product packaging, and online ads.

Value Added

Also, having a trademark registration adds value to your business on multiple fronts. First, trademark registrations are intangible assets which are taken into consideration when a business is valued. If you are ever planning on selling your business, a trademark registration will contribute to the total value of your business. And trademark registrations add value to your business by giving you the power to enforce your trademark rights. Trademark enforcement can be done through filing oppositions with the USPTO, by sending cease & desist letters to those infringing on your mark, or through takedown powers on third party online marketplaces and social media sites such as Amazon, Facebook, and Instagram.

Timing

After a trademark application is field, it has recently been taking the USPTO about nine months to give a preliminary decision on the allowability of the trademark registration. Due to this relatively long lead time, it typically makes sense for an applicant to file an intent-to-use trademark application about 3-6 months before a business launch or a new product launch. By doing so, the applicant can potentially obtain a trademark registrations a few months after the business or new product launch.