What to Do: Someone Trademarked My Brand

Trademark

Someone Trademarked My Brand. In the US, That May Not Matter.

You sold under the name for years and never registered it. Now a stranger holds the certificate — and is filing complaints against your listings. Here is why being first to use can beat being first to file.

By Kenneth G. Eade, CA Bar No. 93774 · August 2, 2026

The call usually starts the same way. A seller built a brand, sold under it for three or four years, never got around to registering it because things were working. Then a stranger's registration appears on the USPTO database — and shortly after, IP complaints start landing on their own listings.

Most sellers assume the fight is over. It usually isn't.

The rule most sellers get backwards

Many countries run first-to-file systems: register first, own the mark, full stop. Sellers who come from those systems — or who absorbed the idea from a forum post — assume the United States works the same way.

It doesn't. In the US, trademark rights arise from use in commerce. Registration is genuinely valuable, but it is evidence of a right rather than the origin of one. A party who used the mark in US commerce before the registrant filed may hold superior rights and may petition the Trademark Trial and Appeal Board to cancel the registration under Section 14 of the Lanham Act.

Be clear-eyed about what the other side does have. A registration gives them a presumption of nationwide ownership, shifts the evidentiary burden onto you, and — critically — satisfies the registration-based criteria for Amazon Brand Registry. It is not nothing, and treating it as nothing is how sellers lose winnable cases through overconfidence.

Your EU or Canadian registration does not help you here

This is the most expensive misunderstanding we see from brand owners outside the United States. Trademark rights are territorial. EUIPO, UKIPO, CIPO, and CNIPA registrations confer exactly zero rights in the US.

It cuts both ways, and both directions hurt. Against you: when a third party registers your brand domestically, you generally cannot defeat that registration by producing your European certificate — the Board wants to know what you did in US commerce and when. Against them: your foreign registration also won't stop a US seller from adopting the same name here in good faith.

There is a further wrinkle worth understanding, because it explains how these registrations issue in the first place. US law permits a registration to issue to a foreign applicant based on a home-country registration under Section 44, or through a Madrid Protocol extension — without the applicant ever having sold anything in the United States. These are legitimate statutory routes used properly every day. But a registration obtained this way, sitting on the register while the registrant does no genuine US business, is substantially more vulnerable than one backed by years of real commerce.

The five-year cliff

Timing matters more here than in most legal problems, and the reason is structural.

Within five years of registration, you can seek cancellation on essentially any ground that would have barred registration in the first place — including likelihood of confusion with your prior-used mark. That is the core priority ground and usually the strongest argument a prior user has.

After five years, Section 14 narrows the grounds to a defined statutory list: abandonment, fraud, genericness, functionality, certain misuse. Ordinary likelihood of confusion based on your prior use is no longer available.

Sellers routinely discover a hijacked registration, feel overwhelmed, and set it aside to deal with when things calm down. That instinct is expensive here. The clock runs from the registration date, not from the date you found out — and the ground you most want is the one that disappears.

Two cheaper routes most sellers have never heard of

A contested TTAB cancellation is not the only tool, and it is frequently not the right first tool. The Trademark Modernization Act created two ex parte proceedings — meaning the challenge runs between you and the USPTO rather than against an opposing party litigating the schedule.

Expungement targets a registration where the mark was never used in US commerce for the registered goods. Reexamination targets a registration where the mark was not in use as of the relevant date, even if it was used at some other point. Both skip discovery entirely. Both are dramatically cheaper than contested cancellation.

Both are also available only during defined windows measured from the registration date, so the same timing discipline applies. We check the registration file before anything else, every time, because the cheapest available route should be evaluated before anyone files a contested proceeding.

The Brand Registry problem makes this urgent

Here is what turns a slow legal problem into an emergency. A federal registration generally satisfies Brand Registry enrollment criteria. So the party who registered your brand name can enroll it, take control of listing content and variations, and gain access to enforcement tools — including filing infringement complaints against the seller who actually built the brand.

You end up defending IP complaints on your own brand, filed by someone who never sold a unit of it, while your listings come down and your account health degrades.

That creates two clocks running at very different speeds. The platform clock runs in days and has to be managed through the marketplace's IP dispute process right now. The rights clock runs on USPTO timelines and is the actual fix. Sellers who address only the platform side keep losing listings to a capability that never goes away. Sellers who address only the rights side sometimes lose the account before the proceeding concludes. Both have to run at once.

What to do first — and what not to do

Do not contact the registrant yet. Not an angry message, not an offer to buy the mark. Premature contact tells them a challenge is coming, lets them prepare, and can prompt them to escalate marketplace complaints against you first. An unconsidered email can itself become evidence.

Gather dated proof of first use instead. Sales records showing the mark on real transactions. Supplier invoices bearing it. Marketplace listing histories. Archived captures of your site. Dated press coverage. Domain registration records. Third-party-held documents beat anything you could have created yesterday, and you need to establish continuous use — not just a first date — because a gap invites an abandonment argument against you.

Collect it now. Listing histories get truncated, web archives are incomplete, and suppliers go out of business and stop answering email. Every month of delay makes the record harder to assemble, and the evidence you can produce is the entire case.

Is it worth fighting?

It's an economic decision and an honest advisor should say so. Weigh the revenue attached to the brand, the strength of your documented prior use, whether the cheaper ex parte routes are open, and the realistic cost of rebranding — which includes lost review history, lost ranking, new packaging, and the real possibility that the same thing happens to the new name if you leave it unregistered again.

An established brand with substantial revenue and solid evidence of prior use is usually worth defending. A recently launched brand with modest sales and thin documentation is often better served by rebranding and registering properly this time.

Frequently asked

Does a registered trademark always beat an unregistered one?

No. Registration creates a presumption that the registrant owns the mark and holds the exclusive right to use it, and it shifts the burden onto the challenger. But the presumption is rebuttable. A party who used the mark in US commerce before the registrant's filing date or first use date may hold superior rights and may cancel the registration.

I have a trademark in the EU or Canada. Does that protect me in the US?

Not by itself. Trademark rights are territorial and a foreign registration confers no US rights. It won't stop a US seller from adopting the name domestically, and when someone registers your foreign mark here you generally can't defeat it by producing the foreign certificate. What matters is who used the mark in US commerce first, or whether the registration was obtained improperly.

How long do I have to cancel someone else's registration?

The grounds narrow substantially after five years on the Principal Register. Within five years you can seek cancellation on essentially any ground that would have barred registration, including likelihood of confusion with your prior-used mark. After five years, Section 14 limits the grounds to a defined list that excludes ordinary likelihood of confusion. Move well before the five-year mark.

How do I prove I used my brand first?

With dated, contemporaneous, third-party-verifiable documents: sales records showing the mark on real transactions, supplier invoices bearing it, marketplace listing histories, archived website captures, dated press coverage, domain records. Self-generated materials that could have been created at any time carry less weight. You must establish continuous use, not just a first date.

Should I contact the registrant and ask them to transfer the mark?

Not before you understand your position. Premature contact lets them prepare, can prompt them to escalate marketplace complaints first, and can itself become evidence. Negotiated transfer does resolve many of these matters — particularly where the registrant has no genuine US business — but establish your evidence and grounds first, then approach from a position where the demand carries consequences.

Send us the registration number.

We'll pull the file, identify the filing basis, check whether the cheaper ex parte windows are still open, and tell you honestly whether your evidence of prior use supports a challenge.

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General information only, not legal advice, and no attorney-client relationship is created by this post. Trademark priority, available grounds, and applicable filing windows depend on the specific facts and the registration file, and the governing rules change. Attorney advertising. Related: expungement · opposition · Brand Registry