- it owns “a mark registered in the Patent and Trademark Office or a mark or trade name previously used in the United States …and not abandoned….” Trademark Act Section 2, 15 U.S.C. § 1052.
Here, the Opposer did not have a registration for its own HALO marks and therefore was required to establish its prior proprietary rights in and to the mark through testimony and documentary evidence showing actual use or use analogous to trademark use. Accordingly, the Opposer sought to rely on its intent to use application for HALO to establish constructive use priority rights in and to the mark. The filing date of Opposer’s intent-to-use applications was March 19, 2010, which preceded Applicant’s filing date of its HALO mark of May 5, 2014. Neither party took testimony evidence and submitted notice of reliance of their respective applications and discovery requests and responses.