How to Secure Trademark Priority for Your Brand

You’ve finally nailed it: the perfect name and logo for your new venture. You’re ready to print the business cards, launch the website, and start selling. But in the excitement of a new launch, many Ohio entrepreneurs skip a critical step: establishing trademark priority. Trademark priority determines whether you actually own your brand identity. Without it, you are at risk of a nasty cease and desist letter.

At MSN Law Office, we focus on the “regular business of your business.” As Outside General Counsel to small business and nonprofit organizations, we’ve seen the risk firsthand. Waiting until after your first sale to consider brand protection can become a costly gamble.

Why Entrepreneurs Must Understand How to Secure Trademark Priority

In the United States, trademark rights are primarily based on use in commerce. This means the person who uses a mark first in the ordinary course of trade generally wins the rights to it. This is known as being the “senior user.” 

Priority is the single most important factor when assessing who has superior rights to a particular trademark. If you cannot prove your rights pre-date a competitor’s, you may be unable to stop them from using your name, logo or slogan. Worse, you may be forced to change yours.

The Strategy for Ohio Common Law vs. Federal Trademark Priority

Let’s say you start selling your product or service only in Columbus. It’s early in the life of your business, so you don’t bother pursuing a federal trademark registration. In this scenario, you gain “common law” rights. While this is a start, these rights are usually limited to the specific geographic area where you operate. If a competitor in Cleveland or Cincinnati files a federal application for a similar name or logo, they could effectively “fence you in.” In doing so, your business may never be able to expand across the state or the country. This is why knowing how to secure trademark priority involves looking beyond the local level to federal protection.

The “Junior User” Risk

If you really want to protect your brand idea, one of your biggest risks is the “junior user.” In certain limited circumstances, someone who starts using the trademark after you (the junior user) but before you file your trademark registration application may still claim some limited rights in the trademark:

1. If you haven’t filed your trademark registration application, then a junior user can claim rights in the trademark in geographic areas where you haven’t yet expanded to. 
2. Even once you get your registration, the junior user can continue to use the trademark if the junior user was using it in good faith before you filed your registration application. 
3. While registration of your trademark creates a presumption that you have the exclusive right to use the trademark nationwide, the presumption can be overcome. You can’t actually stop a junior user in a particular geographic area without showing at least some likelihood that you are going to or have actually entered into that geographic area. 

On the other hand, you also don’t want a junior user to beat you to the USPTO. If a junior user files the trademark registration application first, you may find yourself limited to the areas where you were actually using the mark before the junior user obtained the registration. This can lead to complex and often prohibitively expensive TTAB proceedings or litigation to contest the junior user’s registration and protect your legal claim to the trademark. 

The “Intent-to-Use” Advantage: How to Secure Trademark Priority Before Selling

One of the most powerful tools in a start up’s arsenal is filing an intent-to-use (ITU) trademark application. You don’t have to wait for your first sale to start the process with the USPTO.

By filing an ITU application, you claim constructive use of the trademark. Essentially, the day you file that application becomes your “priority date” nationwide—provided the application eventually matures into a registration.

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Steps for Securing Trademark Priority 

1. Conduct a Clear Search: Before filing, ensure your “perfect name” isn’t “confusingly similar” to another. This mitigates the risk of receiving a cease-and-desist letter later.
2. File Your ITU Application (USPTO Filing): This acts as a legal “placeholder” for your brand while you are still in the development phase.
3. Establish “Technical Use”: Once you are ready to launch, you will submit “specimens” to the USPTO to prove you are now using the mark in commerce. This means the mark is actively being used in connection with the sale or transport of goods or the rendering of services. The method for proving this “use” differs depending on whether the trademark is associated with a physical product or a service.

For Goods (Products): The trademark must be physically placed on the product itself, on its packaging, or on the container used to ship or display the product. This ensures that the public directly associates the source of the physical goods with the brand name or logo. Examples include:

• A tag or label sewn into an article of clothing.
• The brand name printed on a bottle, box, or wrapper.
• The mark etched into the product casing itself (e.g., on electronics).

For Services: Because a service is intangible, the trademark cannot be physically affixed to it. Instead, the mark must be used or displayed in the sale or advertising of the services while the services are actually being rendered to customers. This means the use must be public and directly tied to the delivery of the service. Examples include:

• Displaying the logo prominently on a website, social media, or in digital and print advertisements (e.g., for consulting or legal services).
• Using the mark on business letterhead, invoices, or service vehicles (e.g., for plumbing or delivery services).
• The name used on signage at a physical location where the service is performed (e.g., a restaurant or a fitness studio).

Build a Brand That Lasts

Protecting your brand identity is the foundation of long-term business value. By securing your priority early and registering your intellectual property, you aren’t just checking a legal box; you’re ensuring that the hard work you put into your marketing and reputation stays yours.

If you love what you do and want to build a brand that lasts, then let’s talk. Our primarily project-based flat fees mean you can get sophisticated legal counsel without worrying about billable hours.