<div dir="ltr"><div>Hi All -- I think I know the answer to this, but it isn't entirely clear to me. Here's the question: <br></div><br><div>Is priority properly alleged when the Opposer is relying on the filing date of an earlier pending application (not registered yet -- extensions have been filed for the Statement of Use) against an Applicant's later-filed application but one that includes an Allegation of Use with a date of first use that pre-dates the filing date of Opposer's prior pending application?</div><div><br></div><div>Based on the pending filings at issue, the Applicant claims priority of use. Opposer's allegations in its Notice of Opposition completely ignore this fact and only mention the parties' application filing dates.</div><div><br></div><div>TBMP section 309.03(c)(2) A. reads:</div><div><br></div><div>"A plaintiff must plead (and later prove) priority of use. In order to properly assert priority, a plaintiff must allege facts showing proprietary rights in its pleaded mark that are prior to defendant’s rights in the challenged mark. Such rights may be shown by, for example, ownership of an application with a filing date (or a registration with an underlying application filing date) <b><u>prior to any date of first use on which defendant can rely</u></b>, prior trademark or service mark use, or prior use analogous to trademark or service mark use." Emphasis added.<br></div><div><br></div><div>The earlier date of first use in the Allegation of Use in the Opposed Application is clearly a prior date on which the defendant/Applicant can rely. So it seems the Opposer has failed to properly allege priority to support a likelihood of confusion claim and the Opposition should be dismissed. Am I missing something here?</div><div><br></div><div>Any thoughts/comments are appreciated.</div><div><br></div><div>Thanks,</div><div>Roberto Ledesma<br></div><div><div dir="ltr" class="gmail_signature" data-smartmail="gmail_signature"><div dir="ltr"><div><a href="http://EverythingTrademarks.com" target="_blank">EverythingTrademarks.com</a>
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