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Commencement of trademark protection; notices to third parties

Question 1: Upon filing a trademark, will the applicant get protection immediately? What happens if someone else registers it in say a few months down the road?

Protection does not commence immediately. The presumption of mark ownership and exclusive rights to your trade mark will only be available upon successful registration of the same. The purpose of filing now is to secure an early filing date, and once successfully registered, the presumption of mark ownership and exclusive use of your trade mark then commences from the filing date.

 

If a third party applies for the same trade mark in a few months’ time, his application will be blocked by yours during the examination stage since you have the earlier filing date. If the said third party is confident of proving his earlier use of the same mark prior to your filing date, he may lodge an opposition against your trade mark application during the publication stage, to challenge your application. Even at a later stage, an interested third party whom can prove earlier use may also lodge an invalidation action against your registered trade mark.

Question 2: Is it necessary to include footnotes on documents/websites referring to the trademark application/registration to put third parties on notice about your trade mark rights?

It would suffice to use your trade mark bearing the symbol if you would like to provide notice to third parties that the brand is being used as a trade mark and belongs to your company.

Please refrain from using the “®” symbol until registration is obtained. If you place the symbol ® against your trademark that has not been registered, you will run into trouble in some countries and such an offence is punishable with a fine (this punishment is different in some countries).