Leave the Terror Behind with an Incontestable Trademark!

With Halloween approaching there are more scary things than usual sending chills down my spine. Some of these things are fun-scary, like playing spooky pranks on friends, covering my eyes for most of a horror flick, or taking witching hour strolls through poorly lit cemeteries. Then there are things like the current economic crisis sending a whole different type of chill down my spine. You know what really doesn’t help life amidst an economic crisis? A threat to your cherished and reputable brand or to the trademark you thought was safe merely because it is registered with the United States Patent and Trademark Office (USPTO). Turns out, protecting your trademark can be the not-fun type of scary. Fortunately, there are measures that can be taken to ease your fear and lessen the likelihood of a successful challenge against your mark and brand. One of those measures is filing a Section 15 Declaration with the USPTO to give your mark incontestability status. 

What is incontestability status? 

Like most things, incontestability status is not quite as straight-forward as it sounds.  Incontestable marks can still be challenged, but on significantly fewer grounds than your standard federally registered trademark. The four major challenges that can be brought against incontestable marks are as follows: they have become generic (like Kleenex or Velcro); they have been abandoned (not maintained with the USPTO); another mark has priority (was used in commerce first); or their registrations were acquired fraudulently. Incontestability status allows a trademark owner the presumption of ownership, validity, and secondary meaning (assurance that their mark is not merely descriptive). 

How and when do you file for incontestability status? 

To claim incontestability status your mark must currently be in use for all of its originally registered goods and services and it must have been used in commerce continuously for a period of five years since the date of registration with the USPTO. You must also be able to prove that there are no pending proceedings against your mark’s registration and that no final decisions have been made against your claim of ownership to the mark.  If your mark meets these requirements then you can file for incontestability status using a Section 15 Declaration of Incontestability form on the USPTO’s website and by paying a $200.00 fee. 

With Halloween and the precarious state of our economy knocking at your door, do yourself a favor and claim incontestability status on your trademark as soon as possible. It will save you an unnecessary scare in the future and likely quite a bit of money.  

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