Understanding Trademark Priority Dates and How They Affect Your Application
I’ve seen Australian businesses sink days into creating a killer brand, only to get blindsided by something they didn’t even know existed—a trademark priority date.
If you’re building a business in Australia, understanding this concept can make or break your trademark success. So, let’s get into it.
What Exactly is a Trademark Priority Date?
A trademark priority date is the timestamp IP Australia slaps on your trademark application the moment you file it.
Think of it as calling dibs in the business world: whoever “called it” first has priority.
In trademark land, this date is everything. Why? It’s what IP Australia looks at first to decide who gets to claim the mark if different people want to call dibs on a similar brand.
Establishing Your Trademark Priority Date: Filing vs. First Use
1. Application Filing Date as Trademark Priority Date
The simplest way to lock in your trademark priority date is to file your application.
Once you submit it to IP Australia, you’re in the system. Your priority date is set. Easy, right? But if it’s so easy, why do people still hesitate?
Some business owners think they’re fine if they’ve been using the trademark in the market without officially filing their trademark application.
While Australia has a ‘first-to-use’ rule that can, in theory, protect someone who’s been using a mark before another person filed for it, it’s far from bulletproof. You’d need iron-clad evidence, and even then, if it comes to a dispute, it’s a lot more stressful than having a clean, documented filing date as your priority date.
2. The ‘First Use’ Loophole
Australian trademark law follows the“first use” system: if you’ve been using a mark before anyone else, and you can prove it, that prior use can sometimes trump someone else’s trademark priority date.
This sounds great, but it can have significant limitations.
In short, businesses turn to evidence of prior use if they’ve been caught with their pants down.
It’s a last resort, not a plan A.
How Priority Dates Work Internationally
Say you’ve got your Australian trademark priority date sorted and you also plan to expand in certain overseas countries.
Thanks to the Paris Convention, if you file your overseas trademark applications within six months of the priority date of your Australian application, your overseas applications get to share the priority date of your Australian application!
The Power of the Six-Month Window
Let’s break down why that six-month window matters.
Let’s say you launch a brand that goes viral in Australia. Within weeks, you’re hearing from distributors in Europe and the U.S. wanting to carry your brand.
However, given how popular your brand has become, you’re concerned that competitors might have already applied to register your trademark overseas. What can you do? This is where the six-month window comes into play.
If you file your overseas applications within six months of the priority date of your Australian trademark application, your overseas applications would be “backdated” to your Australian priority date.
In other words, your overseas applications would pre-date those filed any that your competitors might have filed. In essence, they might have filed before you overseas, but you would have the earlier priority date and thus your overseas applications would block theirs. How good’s that?
Safeguarding Your Trademark Priority Date
How do you make sure your priority date is rock solid? There are a few essentials every business owner should follow:
1. File Early
Simple advice but absolutely golden.
The sooner you file for trademark protection in Australia, the sooner you’re protected.
Even if you’re “just testing” a brand, it’s worth filing as early as possible to get that priority date.
2. Don’t Miss the Six-Month Window for International Applications
If you plan on going international, make sure you file within that six-month window. Miss it, and you lose the right to use your Australian priority date in other countries.
3. Keep Evidence of First and Continuous Use (If Applicable)
If you decide to rely on prior use instead of filing, keep airtight records. This means dated invoices, advertising materials, and anything that proves you were in the market first. Think of it as building your case before you even need one.
Of course, our strong recommendation is to file your application sooner rather than later rather than rely on this kind of evidence.
4. Consult a Trademark Attorney
And yes, I know—self-promotion alert here—but seriously, a trademark attorney can help you make strategic choices and avoid common pitfalls with priority dates. Don’t leave it up to Google and guesswork when it comes to protecting your brand.
Common Pitfalls in Managing Trademark Priority Dates
Now, let’s cover some mistakes we see time and again. These slip-ups can sabotage even the best trademarks if you’re not careful.
Missed International Priority Window
We once worked with a client who had international plans but twiddled their thumbs on overseas trademark protection.
Their six-month filing window came and went.
By the time they were ready to file overseas, a competitor had already filed for a similar name and it blocked our client’s own application. Had our client filed within the six-month window, our client’s application would have blocked theirs.
The lesson? Don’t hit snooze on that six-month deadline if you’re thinking about expanding.
Irrelevant or Inadequate Trademark Use
Another pitfall is businesses overestimating the relevance or strength of their trademark use.
Most businesses think that just showing their trademark on something is enough, like in a URL or a logo design. However, such ‘evidence’ hardly qualifies as trademark use.
Trademark use must show the trademark being used in the course of trade in connection with the relevant goods and/or services.
E.g., if you’re arguing that you were the first to use a trademark in connection with clothing sales, then you need hard evidence of that. This might include a storefront with your trademark where you sell clothes or invoices documenting clothing sales in connection with your trademark. A mere business name registration, business card, email signature etc., in and of themselves, are unlikely to constitute trademark use.
Overlooking Competitors’ Applications
It’s easy to file a trademark and then forget about it. But remember, other brands are vying for the same space. Regularly checking IP Australia’s database helps you catch potential conflicts before they become full-blown disputes.
Wrapping It Up: Protecting Your Brand with Trademark Priority Dates
So, here’s the bottom line: priority dates are more than just admin details.
If you’re serious about protecting your brand, don’t leave your priority date to chance.
File early and stay proactive.
