Introduction: Why Priority Is Often the Deciding Issue at the TTAB

In many Trademark Trial and Appeal Board proceedings, priority is the quiet gatekeeper that determines who even gets to argue likelihood of confusion. Before the Board ever weighs similarity of marks or relatedness of goods, it must decide which party owns the earlier trademark rights. For use based applications and registrations, this question turns on proof, not assumptions.

Priority disputes are especially common in oppositions and cancellations involving Section 1(a) filings. While applicants often assume that an earlier filing date settles the matter, TTAB practice tells a different story. Priority must be established with admissible evidence that meets the Board’s expectations, and gaps in proof can unravel an otherwise strong case.

What Priority Means in TTAB Proceedings

Priority in TTAB proceedings refers to which party can show earlier trademark rights in a particular mark for specific goods or services. For use based applications, those rights arise from actual use in commerce, not merely from filing paperwork with the USPTO.

The Board does not presume priority simply because a party filed first or owns a registration. Instead, priority is a factual issue that must be proven through the record. This requirement reflects the TTAB’s role as an administrative tribunal focused on registrability rather than infringement damages.

The Legal Framework for Proving Priority

In use based cases, the party asserting priority must show that it used its mark in commerce before the opposing party’s relevant date. That relevant date may be the other party’s first use date, filing date, or constructive use date, depending on the posture of the case.

The burden of proof lies with the party asserting priority. In an opposition, this is usually the opposer. In a cancellation, it is typically the petitioner. Failure to meet this burden ends the case without the Board reaching likelihood of confusion or any other substantive issue.

Acceptable Evidence of Use in Commerce

The TTAB requires competent evidence showing trademark use in commerce that is lawful and continuous. This often includes dated sales records, invoices, shipping documents, advertising materials, website captures, and testimony explaining how and when the mark was used.

Specimens submitted during prosecution may help establish context, but they rarely carry the full weight needed to prove priority on their own. The Board expects evidence that demonstrates real world commercial activity tied to specific dates. Unsupported assertions in briefs or declarations without corroboration are routinely discounted.

Testimony and Documentary Evidence Must Work Together

One of the most common mistakes in priority disputes is relying too heavily on testimony without documentary support. While witness testimony is permitted and often necessary, the Board prefers testimony that explains documents rather than replaces them.

For example, a declaration stating that a mark was used in commerce as early as a certain year is far more persuasive when supported by invoices, product labels, or contemporaneous marketing materials. The TTAB is skeptical of vague recollections, particularly when priority is contested.

Establishing Continuous Use and Avoiding Gaps

Priority is not just about who used a mark first. It is also about whether that use was continuous. A party that establishes early use but fails to show continued commercial activity risks losing priority to a later user who can demonstrate consistent use.

Gaps in use raise questions about abandonment or interrupted rights. Even short periods of nonuse can weaken a priority claim if not properly explained. The Board examines the totality of the record, including whether any pause in use was accompanied by intent to resume.

Priority and the Identification of Goods or Services

Another subtle issue in priority disputes is alignment between the goods or services proven in use and those identified in the application or registration. Priority must be established for the specific goods or services at issue, not for a broader brand concept.

For example, proof of use for consulting services does not automatically establish priority for software products, even if sold under the same mark. Parties must carefully tailor their evidence to match the identification of goods or services involved in the proceeding.

Constructive Use Dates and Their Limitations

Applicants often rely on constructive use dates tied to filing dates under Section 7(c). While constructive use can establish priority as of the filing date, it does not replace the need for actual use when earlier rights are claimed by another party.

In use based disputes, constructive use is helpful only when it predates the opposing party’s proven use. If the other party can show earlier actual use, constructive use dates lose their advantage.

Common Priority Mistakes That Undermine TTAB Cases

Priority disputes frequently fail due to avoidable errors. These include submitting undated materials, failing to authenticate internet evidence, relying on internal documents without proof of public exposure, and assuming that ownership of a registration automatically establishes priority.

Another recurring problem is inconsistency. When testimony conflicts with documentary evidence or prior filings, the Board tends to resolve doubts against the party bearing the burden of proof.

Strategic Considerations for TTAB Litigants

Priority should be evaluated at the earliest stages of a TTAB case. Parties who overestimate their ability to prove use often invest heavily in litigation only to lose on threshold grounds. Conversely, parties defending against a priority claim may succeed by exposing evidentiary weaknesses rather than disputing substantive trademark issues.

Your brand is everything, and priority disputes directly affect the scope of brand protection. Taking a strategic, evidence driven approach from the outset can preserve leverage and avoid costly surprises later in the proceeding.

Conclusion: Priority Proof Is About Precision, Not Assumptions

Proving priority in TTAB proceedings for use based applications requires more than a good story. It requires precise, well documented evidence that aligns with the legal standards applied by the Board. Parties who treat priority as an afterthought often discover that it is the deciding issue.

If you are involved in a TTAB opposition or cancellation where priority is disputed, working with experienced trademark counsel can help ensure that your record is built correctly and persuasively. Let’s simplify this IP process together and protect what matters most.