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What is the first-to-use trademark rule?

Photo of Jan Buza

Written by Jan Buza

Co-founder of Trama

The lesser spread first-to-use trademark system states that a priority right is given to the brand owner who has been using the mark on a given market before other brand owners, even if this mark has not been protected by a registered trademark.

Let's say there is a brand owner of "ABC clothing", Chris, who has been active in the Canadian market for one year. A brand with an identical name - "ABC clothing" - is created in a year by Kate. Kate decides to file a trademark registration with the Canadian IP office to protect her rights.

Based on the first-to-use trademark rule, Christ has the right to that name. However, if he fails to notify the Canadian IP office in time, Kate will be granted the trademark. When examining Kate's mark, Canadian examiners will assess only those brands with a pending or registered status in their database and not those merely used in the market.

Canada, the USA and Australia adopt the first-to-use system; however, there are some differences when applying this rule in each of these markets.

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