What Kind of Proof Do I Need to Show for Trademark Registration? - Daniel Ross & Associates

There are a number of things that you are going to have to submit to the Examiner to prove you’re using the trademark and it deserves to be registered.

You’ll need to prove:

  • That you’re using the mark
  • That you were the first to use the mark
  • That the mark that you’re using is proper subject matter for trademark protection.

Proof of use can be on the front end, when you submit your application, or the back end, after examination has been completed.

On the front end would be 1(a) status, meaning actual use in commerce. Here you’ll submit proof that you’re using your brand in a commercial way.

If you’re not using your trademark yet, you’d file a 1(b) “intent to use” application. It defers the requirement to show proof of use, but it does come with some additional filing fees and some other nuances there.

Proof to Challenge a Conflicting Mark

If during the examination the Examiner says there is a likelihood of confusion conflict with a registration or prior application, then you’ll need to discover who used the mark first. If you have prior chronological rights, you have superior rights. And if the conflict is with a prior application, you may be able to file a letter of protest to avoid further issue. Otherwise, you’ll need to file an opposition or cancellation proceeding, depending on the circumstances.

Finally, you need to show that your brand is proper subject matter and trademarkable. Your trademark can’t be generic or descriptive. It must be either suggestive, fanciful, or arbitrary.

Learn More About Trademark Law

If you are applying for a trademark, ensure you’re on the right path with the attorneys at Daniel Ross & Associates. To schedule a free consultation to discuss how your trademark needs, please call (216) 307-5590, or get in touch using our online intake form.


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