Priority Right

Priority right refers to the factors used to determine who has the right to file for a patent or trademark for an invention or mark. The key factor in determining the priority right is the first filing of an application to register the patent or trademark in a country. Once the applicant has filed the application to register the patent or trademark in a country, that applicant has the priority right to obtain the same patent or trademark in other countries.

Priority rights take precedence over an entity already using a given invention or mark, even if the entity was using the invention or mark before the applicant first filed to register the patent or trademark. A court does not consider the date when an entity first uses an invention or mark in determining the priority right to the invention or mark.

In addition, even if an entity files an application to register a patent or invention, the Patent and Trademark Office will not allow an entity to complete the registration if another applicant has already submitted an application to register the patent or trademark in another country. The holder of a priority right has a limited timeframe (known as the priority year) to complete registration of the patent or trademark in other countries. The timeframe is 6 months for trademarks and 12 months for patents.

Priority rights may not be a factor when it comes to well-known marks, as the existence of a well-known mark that is not registered may prevent another party from registering a mark that is deemed to infringe on the well-known mark.