Per the United States Patent and Trademark Office (USPTO), the average time between a trademark's filing date and a mark's abandonment, the USPTO issuing a notice of allowance for the trademark, or a mark achieving registration is just over 14 months, based on data for the last three years. During this period of pending, trademark applicants can expect some form of protection for their intellectual property (IP). Learn about the intellectual property rights afforded to IP owners during a pending trademark, and explore how a knowledgeable Louisiana intellectual property lawyer can address business' IP concerns; call the Business Law Group at (504) 446-6506 to schedule a consultation.

What Is Intellectual Property?

IP encompasses creations of the mind, including artistic and literary works, symbols, designs, images and names employed in commerce, and inventions. The legal system safeguards IP so that creators can acquire financial benefits and/or recognition for their creations, encouraging innovation and creativity.

Patents, copyrights, trade secrets, and trademarks are the main types of IP. A trademark refers to a sign that distinguishes an enterprise's products or services from another; such signs may include symbols, words, phrases, logos, designs, sounds, textures, flavors, smells, and a good's appearance.

What Are Intellectual Property Rights?

According to the World Trade Organization (WTO), IP rights refer to the rights designated to individuals for their intellectual creations. They typically provide creators with exclusive usage of their creations for a particular period.

What Does It Mean When a Trademark Is Pending?

When a trademark is pending, this means that an IP owner has applied to register their mark with the USPTO, which ultimately decides whether to deny or approve the registration. During this time, the applicant may use the ™ symbol with their trademark (or ℠ with their service mark) to indicate the mark's pending status, which informs possible competitors that the applicant is using the trademark and has filed for registration.

However, these symbols themselves do not grant significant, legally enforceable IP protections or rights. Importantly, trademark owners cannot use the ® symbol, indicating a registered mark, with their trademark until the USPTO approves registration; this symbol does provide substantial IP protections, and it signifies that the trademark owner is the only entity permitted to use the mark with the goods/services listed in the registration. Businesses and individuals may review their trademarks' status via USPTO's website; here, they can also send the USPTO any requested documents and update any existing paperwork to facilitate the registration process.

Do Pending Registrations Protect Trademarks?

Pending trademark registrations are visible to any entity or person performing due diligence prior to registering their trademarks. Since the USPTO discourages registering similar trademarks, having a pending registration can provide limited protection against IP infringement.

Acquire a more detailed understanding of the available intellectual property rights during a pending trademark, and discover how the Business Law Group can aid companies and individuals with their IP queries. Contact our firm today to speak to a New Orleans intellectual property lawyer.

Can You Use a Trademark While It Is Pending?

Companies and individuals may use their trademarks while they are pending, which is the recommended approach since this helps trademark owners demonstrate commercial use of the mark and helps solidify their rights to it. That said, those looking to register their trademarks may want to consider carefully researching to check whether any similar registrations exist before using the mark; if they do, the USPTO may decide not to approve the registration, and using a pending trademark that is similar to a current registration may lead to the registrant pursuing legal action against the applicant. Applicants can check for similar trademark registrations by conducting online searches and utilizing the USPTO's trademark database via the Trademark Electronic Search System (TESS).

Benefits of Pending Trademarks

Pending trademarks typically provide less protection compared to registered marks. However, there are some benefits to having a pending trademark, as outlined below.

Hold off the Competition 

Businesses can use pending marks to prevent competitors from registering similar or identical trademarks. Prudent companies that promptly file their registrations can secure IP rights to sought-after trademarks ahead of the competition, such as trending phrases, from which they can then profit.

Pursue Retroactive Legal Claims

If an entity applies for a trademark before its competitors, and therefore obtains a pending mark, it can potentially retroactively enforce its IP rights from the filing date. While a competitor may use the same mark as a pending one, if the application achieves registration, the registrant could pursue a retroactive legal claim against the competitor.

Warn Other Parties

Pending trademarks warn other parties that someone else has already claimed the mark, discouraging the use of the mark by competitors due to the potential legal consequences for doing this. This enables trademark owners to secure their IP rights and develop their brands.

How To Boost the Protection of Pending Trademarks

Those with pending trademarks can carry out several tasks to boost the protection of their marks. These steps include the following.

Apply for Trademark Variations

One option involves filing multiple applications covering the numerous variants of the trademark. This can be a viable route for individuals or entities who can afford to do this; moreover, this can be an effective way of stopping competitors from using similar trademarks with the same goods/services.

Prioritize Key Trademarks

Some companies or individuals might be unable to file numerous trademark applications. For these parties, a more suitable approach is to prioritize filing for key trademarks that are likely to be the most profitable.

Stay Informed on Market Trends

Certain trademark filings may rely on the latest developments in a particular market, such as innovative technology. To ensure the pending trademark offers effective brand protection, consider staying informed on market trends and updating the application to reflect market developments, where necessary.

Contact a Louisiana Intellectual Property Lawyer to Find Out More

Understanding the available IP rights for pending trademarks is a vital part of protecting a company's brand. Irrespective of whether a mark has achieved registration, or is awaiting this, trademark owners may want to consider proactive trademark monitoring to enforce their rights. Learn more about the intellectual property rights accessible to IP owners for a pending trademark, and get assistance with navigating the trademark registration process by contacting a seasoned Louisiana intellectual property lawyer from the Business Law Group; contact our firm today to schedule a consultation by calling (504) 446-6506.