Q: Do I have the rights to a trademark that I used first, but another company filed 2 years after my use?
I wrote a business plan in November 2017 for a ready-to-drink nootropic coffee beverage. I planned on using the name Cognitive Coffee and have emails documenting this. I now want to start the company but on April 15, 2019 Terrasoul Superfoods trademarked Cognitive Coffee for a powdered coffee with nootropics. Is powdered coffee in the same category as ready-to-drink beverages? Do I have rights to the TM because I used it first?
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A: Creating a business plan won't constitute the "use" required by the statute for a trademark registration. The USPTO will likely issue a refusal because the goods are similar and the likelihood of confusion would exist. Please feel free to call or email me if I can assist you further.
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A: A company who has used a trademark as a source identifier for their goods or services has priority over a later user, however you have not established use, you only "planned to use" the mark. Since this other company actually used the mark before you, they would likely prevail in a trademark proceeding, and your using the mark would likely constitute trademark infringement of their trademark.
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