What Trademark Rights Do I Have While My Application Is Pending with the USPTO?

Question: What trademark rights do I have while my trademark application is pending with the USPTO?

Answer: The rights in a pending trademark application are very limited.  You do not have the rights of a federal trademark registration until the USPTO reviews and approves your application.

While your application will certainly hold your place in line and not allow someone else to file a same or similar trademark, it does not give you any additional enforcement rights. Essentially, you cannot ask someone to stop using a trademark based on your federal rights while your application is pending, because you do not yet have the rights of a federal trademark registration.  You may still have limited “common law” rights which can be enforced.

Typically, the trademark registration process takes 8-10 months. Once your trademark finally registers, you can then go out and police your trademark.

The good news is that your rights will be retroactive to your filing date. This means that if you file your trademark on January 1st and it registers on November 1st, you can enforce the trademark based on rights from January 1st.

So although you do not have any rights while your trademark application is pending, you do receive those rights following the registration.

• SHARE THIS ARTICLE ON:

Josh Gerben, Esq.

Josh Gerben, Esq. is a nationally recognized trademark attorney and the founder of Gerben IP. Since launching the firm in 2008, he has overseen the registration of over 10,000 trademarks and handled over 1,500 trademark disputes. Josh's practice focuses on building and defending global trademark portfolios for clients. These clients include entrepreneurs, private equity-backed businesses, athletes, celebrities, and public companies. Frequently quoted by major media outlets like CNBC, CNN, The New York Times, and The Wall Street Journal, Josh is widely regarded as a leading authority in trademark law.