Can someone use your trademark while it's pending?
Asked by: Sophie Padberg | Last update: February 25, 2026Score: 4.8/5 (41 votes)
Yes, someone can use your trademark while it's pending, but you can also use it and claim rights (with ™), though strong enforcement only comes after registration; however, a registered owner can challenge your use, and you can gain "common law rights" through use, potentially stopping others or retroactively strengthening your application, but it's risky without full registration.
Can you use a pending trademark?
Yes, generally speaking, you can start using your brand in commerce while your trademark application's approval is pending. A trademark is not a business license and waiting doesn't prevent you from launching your brand.
Can someone else use my trademark?
Generally, third parties cannot use a trademark without the owner's permission (such as obtaining a trademark license). However, not every unauthorized use constitutes trademark infringement. In some cases, the user may have a defense to the infringement claim. One of the most common defenses is called fair use.
Can you use TM if a trademark is pending?
Trademark pending indicates that an application for trademark protection is in review with the United States Patent and Trademark Office (USPTO). You can use symbols (TM, SM) next to your symbol, mark, logo, word, phrase, or design that indicate the trademark pending status.
Can someone else use my trade name?
Infringing on the Trademark Name
If there is a trademark in place for his or her company and someone else created a new entity with the same name, this owner can pursue a legal claim and contact a lawyer for a legal remedy.
DON'T LOSE YOUR TRADEMARK! How to Revive an Abandoned Application
Do you get paid if someone uses your trademark?
Yes, if you find someone infringing on your trademark, one of the options you have is to approach them and propose they sign a trademark license agreement and pay you royalties for the use of the trademark. Trademark royalties are usually a percentage of the revenue generated by the trademark.
What is the rule 37 of trademarks?
Further, Rule 37 of Trade Marks Rules, 2017 states that an applicant for registration of a trademark may, whether before or after acceptance of his application but before the registration of the trademark, apply in Form TM-M accompanied by the prescribed fee for the correction of any error in or in connection with his ...
How to fight a pending trademark?
During the publication period or any extensions thereof, a third party must file a Notice of Opposition with the Trademark Trial and Appeal Board (TTAB) in order to commence an opposition proceeding. The Notice of Opposition is essentially a complaint containing your grounds for why the mark should not be registered.
What is stronger, TM or R?
Legal Protection: The ® symbol provides stronger legal protection than ™. It gives you the right to sue for trademark infringement if someone else tries to use your registered trademark without permission.
Can you transfer a pending trademark?
Trademark owners may need to transfer ownership or change the name on their application or registration. This could happen while your trademark application is pending or after your trademark has registered. Use Assignment Center to transfer ownership or to request a change in name.
Can I sue someone for using my trademark?
A trademark owner who believes its mark is being infringed may file a civil action (i.e., lawsuit) in either state court or federal court for trademark infringement, depending on the circumstances. However, in most cases, trademark owners choose to sue for infringement in federal court.
How do you stop someone from using your trademark?
Send a Cease-and-Desist Letter
A more efficient first step is to send what intellectual property attorneys call a cease-and-desist letter. This is essentially a demand letter, addressed to the trademark infringer, succinctly and clearly explaining the infringement.
Can someone steal my logo if it's not trademarked?
If your logo is registered with the USPTO (U.S. Patent and Trademark Office), you have a strong legal foundation to stop others from using it. But even without registration, you may still have common law rights if you've been using the logo consistently in commerce.
Is it better to get a TM or a copyright?
Neither trademark (TM) nor copyright is inherently "better"; they protect different things, so the best choice depends on what you're shielding: trademarks protect brand identifiers (logos, names, slogans) for infinite duration with use, preventing consumer confusion, while copyrights protect original creative works (books, art, music, code) for life plus 70 years, preventing unauthorized copying. Often, you need both, like a trademark for your company logo and copyright for the artwork within that logo, to fully protect your brand and creative assets.
Is it illegal to say patent pending?
Marking an article as patented when it is not is unlawful and subjects the offender to a penalty. Some people mark articles for sale with the terms “Patent Applied For” or “Patent Pending.” These phrases have no legal effect, but only inform the public that a patent application has been filed with the USPTO.
How to check if a trademark is being used?
Free, official databases like USPTO's TESS, WIPO, and EUIPO make it easy to see if your name, logo, or slogan is already in use. Keep monitoring your trademark after registration to maintain your rights and safeguard your brand as you grow.
Can I put TM on my logo?
If your trademark is a logo or design, put TM or ® on the right side of your wordmark (names, terms, phrases) and in subscript so that it is in the lower-right corner. Alternatively, you can put the trademark symbol in the logo.
Do I need a lawyer for a trademark?
No, a U.S.-based applicant isn't legally required to use an attorney to file a trademark, but it's strongly recommended because the process is complex, and mistakes can lead to rejection or weak protection. An attorney handles crucial tasks like trademark clearance searches, class selection, responding to Office Actions, and ensuring proper legal arguments, significantly increasing the chances of approval and providing better overall protection, though foreign applicants must use a U.S.-licensed lawyer.
Can I use brand registry without a trademark?
To enroll a brand in Brand Registry, your brand must have an active registered trademark or a pending trademark registration.
Can I buy a cancelled trademark?
If the mark has been abandoned for three to five years, odds are, you're in the clear. That's the span that the USPTO requires trademarks to be maintained, meaning if the proper paperwork hasn't been filed, it's potentially up for grabs.
Can someone challenge a trademark?
You may challenge a trademark registration issued by the USPTO by filing a petition to cancel the registration with the Trademark Trial & Appeal Board (TTAB).
How common are trademark lawsuits?
How Many Trademark Infringement Lawsuits Were Filed in 2020? In 2020, there were 11,941 trademark infringement lawsuits filed in the United States. This figure illustrates the significant number of disputes that reach the litigation stage, emphasizing the aggressive stance businesses take to protect their trademarks.
What are the 4 types of trademarks?
The four main categories of trademarks, ranked by strength, are Fanciful/Arbitrary, Suggestive, Descriptive, and Generic, with Fanciful/Arbitrary being the strongest (e.g., Kodak, Apple for computers) and Generic being the weakest (e.g., "Aspirin" for pain relievers, which cannot be trademarked). These categories determine how much distinctiveness a mark has and the level of legal protection it receives, with fanciful/arbitrary marks being inherently strong and generic terms never receiving protection.
Can I edit my trademark application?
For average Trademark filing wait times, visit the Current wait times webpage. Generally, you can make only minor corrections to application information once it's been submitted and you've received a filing date.
What is the penalty for trademark?
Key Provisions under Section 103 of Trademark Act
Section 103 of Trademark Act, 1999, criminalizes falsifying or falsely applying trademarks, using false trade descriptions, and tampering with origin indications, imposing imprisonment of six months to three years and fines of ₹50,000 to ₹2,00,000.