The United States is officially a “first-use” country when it comes to trademarks, meaning that rights to a trademark are based on actual use in commerce. However, current laws allow for “intent-to-use” applications, where an entity can file for a trademark before it has even been used in the marketplace. This system creates significant vulnerabilities for small businesses, allowing large corporations or foreign entities to file trademarks preemptively and potentially block rightful owners from securing their trademarks.
To address these concerns, the following changes should be considered:
- Eliminate “Intent-to-Use” (1B) Applications: Trademarks should only be granted to businesses or individuals who are actually using them in commerce. The option to file without demonstrating current use opens the door to exploitation, where larger or foreign entities can claim rights over a trademark that they have no genuine intention of using, leaving rights owners suspended or in a veritable trademark limbo, meanwhile bad-actors are allowed to infringe with impunity due to lack of full trademark registration and protections. A first-use country should not grant priority based on filing date.
- Protect U.S. Businesses and Prioritize U.S. Trademarks: U.S. trademark law should prioritize and protect U.S. businesses and trademarks over foreign entities. The current system, which allows foreign companies to file preemptive trademark claims, puts U.S. businesses, especially small ones, at a severe disadvantage. These foreign entities can exploit the system by claiming priority, leading to costly legal battles that small U.S. businesses cannot afford. U.S. trademark law must ensure that American companies have priority and protection within their own market, preventing foreign entities from undermining their intellectual property rights.
- Prioritize First-Use Evidence: If the United States claims to be a first-use nation, it should treat it as such. Filing priority should not override concrete evidence of actual use. Small businesses with legitimate claims should be protected from predatory practices by requiring solid proof of first use, not just a first filing.
- Reduce or Eliminate Fees for American Citizens: American citizens and businesses should not be burdened by exorbitant fees throughout the entire trademark process. From registration to opposition, the legal and procedural fees are an unnecessary financial barrier, especially for small businesses. The tax system is designed to fund government services, and charging additional fees for citizens to access these essential processes is unjust. The entire trademark process, from initial filing to any objections or disputes, should be managed through streamlined and efficient departmental processes without adding excessive legal or administrative costs. This would ensure that small businesses and individuals can protect their intellectual property without being priced out by an overly complex and costly system.
By reforming the trademark system to align more closely with its first-use principles and protect U.S. businesses, we can create a fairer, more accessible process for everyone.