Learn something new every Monday! Join over 4,000 entrepreneurs and business owners for weekly Trademark tips, tricks, and news.
They had a name but not the proof
|
June 25, 2026 Hello Reader, One of the most common trademark misunderstandings is this: “I used the name first, so I should win.” That statement may be true in theory. But in a trademark dispute, theory is not enough. You need proof. A recent Trademark Trial and Appeal Board decision is a strong reminder. An opposer challenged an application for NEAU COFFEE, arguing that it had prior common law rights in NEAUX and NEAUX COFFEE COMPANY for coffee. On the surface, this sounds like the kind of dispute where priority could matter a lot. Two similar-looking coffee names. Both connected to coffee. A claim that one party was there first. But the opposition was dismissed. The key problem was not the similarity of the marks. The key problem was evidence. The applicant was able to rely on the filing date of its application as a constructive use date for priority purposes. That date was March 14, 2022. That meant the opposer had the burden to prove that it had acquired common law rights before that date. The opposer did not introduce the evidence needed to carry that burden. There were internet materials in the record concerning the opposer’s use. But the Board found that those materials were not enough to prove priority. Screenshots and website materials may show what appears on their face, but without proper supporting testimony, dates and statements in those materials may not prove the truth of what happened and when. That is the lesson founders should not miss. Using a name is not the same as proving use of a name. And believing you were first is not the same as proving you were first. In the real world, many small businesses are casual about this. They launch quickly. They post on social media. They sell through a website. They attend events. They send invoices. They change logos, update packaging, move website platforms, and delete old pages. Then, years later, when a dispute arises, they have to reconstruct the history of the brand. That can be hard. Who has the original packaging? Who has the first invoice? Who has dated photos of the product? Who has archived website evidence? Who can testify about what was sold, where it was sold, and when it was sold? Who can connect the mark to the goods or services in a way that satisfies the legal requirements? This is one reason federal registration is so valuable. A trademark application creates a public record. A registration can create important presumptions. It does not eliminate every dispute, and it does not fix every weakness, but it gives the owner a much better starting point than trying to prove everything from scattered memories and old screenshots. Common law rights can be real. But they can also be difficult to prove. That is especially true when the business waited too long to file, did not preserve records, or assumed that online content would always be available later. Founders should treat trademark evidence like business insurance. Save dated specimens. Save invoices. Save product photos. Save website captures. Save launch announcements. Save advertising. Save proof of sales across state lines when goods or services are offered in interstate commerce. And when a mark matters, do not wait until conflict appears to think about registration. The best time to create a clean trademark record is before there is a fight. Because once there is a fight, the question may not be: “Were you first?” The question may be: “Can you prove it?” That is a very different question. If you are considering filing a trademark and want to understand the safest strategy, you can review the filing options here: Trademark Registration Options Here J.J. Lee and the Trademark Lawyer Law Firm Team P.S. A brand history that only lives in your memory may not be enough when it matters most. Recent Registrations Here are a few recent trademarks our firm helped register for clients: |
J.J. Lee, Trademark Attorney
Learn something new every Monday! Join over 4,000 entrepreneurs and business owners for weekly Trademark tips, tricks, and news.
July 23, 2026 Hello Reader, Many risky trademarks look safe at first. That is because most people search for the wrong thing. They search for the exact same name. If nothing identical appears, they feel comfortable. But trademark conflicts are not limited to exact matches. The Trademark Office looks at likelihood of confusion. That analysis can involve the marks, the goods or services, the channels of trade, the customers, and the overall commercial impression. That means a conflict can exist...
July 16, 2026 Hello Reader, Many founders think trademark classes are mostly about cost. That is understandable. Each additional class can increase the government filing fee, so the class decision feels like a pricing decision. But it is also a protection decision. A trademark registration does not protect a name in the abstract. It protects a mark in connection with specific goods or services. That means the way the application describes the business matters. A clothing company, software...
July 9, 2026 Hello Reader, One of the most important trademark filing questions is also one of the easiest to answer incorrectly: Are you already using the trademark? That question sounds casual. It is not. In a trademark application, “use” has a legal meaning. It is not just having an idea. It is not just reserving a domain name. It is not just designing a logo. It is not just posting a teaser on social media. For many goods, use generally means the mark is placed on the goods, packaging,...