Why is the Trade Mark Priority Date so Important?

Author: Riet van den Ende, Progressive Legal

Trademarks serve as vital assets for any business: they encapsulate its brand identity and distinguishes its products or services from those of competitors. If you have been looking into trade mark applications, the term, ‘priority date’ might sound familiar to you.  

The priority date, a fundamental concept in trademark law, holds immense importance in protecting and asserting your brand’s identity. It is therefore essential that you understand  the importance of your trade mark’s priority date before you begin your trade mark application process.

On this page, we explore the meaning and significance of priority dates for trademarks and shed light on their role in safeguarding your brand. 

What is the priority date of a trade mark? 

The term ‘priority date’ refers to the date that the legal claim to a trade mark commences. The priority date can be the date a business first files their trade mark application with IP Australia, but can also be earlier if the application is based on another trade application.

It marks the starting point from which the legal rights and protection associated with the trademark are established. Once a trade mark is registered, its registered rights take retrospective effect from the priority date.

The priority date holds paramount importance in determining the priority of ownership and resolving potential conflicts with other trademark holders. 

What is the purpose of the priority date of a trade mark? 

The main purpose of the priority date is to establish the start date of any ownership and rights in a trade mark. The priority date  determines when those rights commence, and can be crucial evidence when deciding who claimed the trade mark first.

Trade mark applications are essentially assessed on a ‘first come, first serve’ basis. The priority date ensures that the first applicant holds a superior claim over later applicants, safeguarding their exclusive rights to use and protect the mark. This is why we recommend that you file your trade mark as soon as possible. 

How do I get a Priority date for my Trade Mark? 

You should file for an application with IP Australia to obtain a priority date. If you are considering filing a trade mark application, feel free to contact our Trade Mark Lawyers. All they will require is: 

• A representation of your trade mark; and 
• A call with you to determine correct ownership, the list of goods and services you intend to associate your trade mark with and any other details relevant to your application. 

After filing a trade mark application, you will receive a notice of filing  from IP Australia, confirming that the mark has successfully been applied for and a priority date is allocated. 

How can the Priority date resolve Trade Mark Oppositions? 

Trademark conflicts may arise when multiple parties seek registration for identical or similar trade marks. The priority date can be a critical factor in resolving trade mark oppositions. If a prior application or registration exists with an earlier priority date, it can serve as a basis for rejecting later applications.

The priority date acts as a reference point to determine who holds the earlier claim to the mark, aiding in the fair resolution of conflicts and maintaining the integrity of the trademark system. 

For example, if a trade mark is deceptively similar to another trade mark that has acquired reputation in Australia, it may be opposed under Section 60 Trade Marks Act 1995 (Cth). You must prove that the trade mark has become well-known in Australia and that the goods and services are linked with this reputation. You must show that the date of first use is before the priority date of the opposed mark.

For more information on trade mark oppositions check out our page here.

Why is the Priority Date important if I want to file a Trade Mark internationally? 

In an increasingly interconnected world, businesses often seek trademark protection beyond their domestic markets. Priority dates hold significant value, not only in Australia, but also if you choose to file overseas.  

If you intend to file or have filed for a trade mark application in Australia, you can file an international application in anyoverseas countries of your interest within six months of filing your Australian application. This will give you the benefit of claiming your Australian priority date as the overseas priority date, giving you earlier protection.  

If you need advice with regard to international trade mark registration, feel free to make an enquiry below.

How long does a priority date last for a trademark? 

The priority date for a trademark is established when the application is filed and remains fixed. It does not expire or change unless the application is abandoned or withdrawn.

The priority date serves as a permanent reference point for determining the order of rights and protecting the trademark. 

How do I preserve my rights from the Priority Date? 

The priority date is intimately tied to the concept of ‘use’ in trademark law. In Australia, the validity of a trademark registration depends on the active use of mark following the priority date.

This requirement ensures that trademark owners continue to use their trade marks to maintain exclusive rights. Failing to demonstrate sufficient use within the prescribed timeframe may result in challenges to the validity of the registration. 

How is the priority date different to the registration date?  

Often the priority date of a trade mark is confused with the registration date of a trademark. The priority date of a trade mark precedes the registration date.

The priority date is when a trade mark application is first filed to IP Australia. Your business receives priority rights from this filing date. The whole process of registering a trade mark application takes at least 7 months.

After this process, if your trade mark application is accepted, it will ultimately be registered with IP Australia. The date when your trade mark is officially registered with IP Australia is the registration date.   

Key Takeaways

Having a comprehensive understanding of priority dates can prove beneficial to securing your trademark rights and maximise the protection for your business. The priority date can have a profound impact on the extent of legal safeguards available to you.

The best way to ensure that your application is correctly and promptly filed is by contacting our skilled Trade Mark Lawyers at Progressive Legal. If you have any questions about trade mark priority dates, we encourage you to make an enquiry below or call us on 1800 820 083. 

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