[E-trademarks] Alleging Priority in Notice of Opposition

[Roberto Ledesma]

Hi All -- I think I know the answer to this, but it isn't entirely clear to
me.  Here's the question:

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?

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.

TBMP section 309.03(c)(2) A. reads:

"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) *prior to any date of first use on which defendant
can rely*, prior trademark or service mark use, or prior use analogous to
trademark or service mark use." Emphasis added.

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?

Any thoughts/comments are appreciated.

Thanks,
Roberto Ledesma
EverythingTrademarks.com
Linkedin.com/in/RobertoLedesma <http://linkedin.com/in/robertoledesma>
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