Outside the U.S. and Canada, most countries are “first-to-register” countries. This means that trademark rights are not acquired by using your name on your storefront, website or product package, but by registering that name with that country’s respective trademark registrar. In those countries, that name can be a mere concept or an idea floating in your mind and you can obtain protection for it; or that name can be someone else’s name or someone else’s brand used somewhere else in the world, which someone else failed to register it in your country.

In the U.S. as well, because trademarks may be registered based on the intent-to-use that mark in the future, someone can beat you to the United States Patent and Trademark Office with your mark, even though they are not using that mark, by filing an application to register that mark with that Office first. There is a caveat, that even though the filer of an intent-to-use trademark application may obtain rights in the mark that is the subject of that application as of the date that he filed the application to register that mark with the Patent Office, those rights will only take effect when that mark is used for goods or services and a registration is issued. However, if you don’t bolt out of the starting gate first with your intent-to-use application, others can beat you, leaving you to wait until the other prior-filed applications run their course through the trademark application process and fail to finish.

Just ask Jeremy Lin who retained Arent Fox to file an application for LINSANITY. Except that Yenchin Chang of Alhambra, California filed his application first and Lin’s high school basketball coach filed an application to register LINSANITY the day after Lin did.
So don’t be linsane or get fouled out. If you have a name that you enthusiastically want to use for a product or service, make sure it’s available by doing a trademark search and then promptly apply to register it. In trademark law as in basketball, there’s a shot clock running down.

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