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A Competitor Filed My Brand Name First: Your Options and What Each Costs

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If a competitor filed your brand name first, your options run from watching their application, to opposing or cancelling it, to negotiating, to rebranding, and the government fees run from $0 to $600 per class before any legal work. Which one is worth paying for turns on one fact: whether you were selling under the name before their filing date.

So before you spend anything, find that date.

The one date that decides most of it

Once a mark registers, the owner's filing date works like nationwide use of the mark. That's 15 U.S.C. § 1057(c). It's what makes filing first so powerful.

The same section carves out an exception. The filing date doesn't beat someone who used the mark before it and hasn't abandoned it, or someone who filed their own application earlier. If that's you, you have something to work with.

Look up their application in the USPTO's records and write down the filing date, any claimed first-use date, the goods or services, and the status. Then pull your own proof of first use: dated invoices, order records, website captures, packaging, ads. Your first real sale under the name is the date that matters, not the day you thought of it or bought the domain.

If they filed first and also used the name first, be honest with yourself. Most of the options below get weaker and more expensive, and rebranding may be the cheapest path.

Option 1: Watch their application. $0 now.

You can track the application's status for free. Plenty of filings never make it to registration.

The catch is the clock. When their application is approved, it's published, and the window to oppose is 30 days. Watching only works if someone is actually watching.

Option 2: A letter of protest. $150.

A letter of protest sends evidence to the USPTO about a pending application. The fee is $150 per application.

It's narrow. The USPTO says a letter based on your common law prior use isn't an appropriate use of the procedure and typically won't be considered. It works for things an examining attorney can act on, such as your own earlier-filed application or registration, or evidence that the name is merely descriptive. It also doesn't extend your time to oppose. So for most earlier users without a filing, this isn't the tool.

Option 3: File your own application. $350 per class to the USPTO.

You can file even though theirs came first. It won't jump ahead of theirs. If their earlier application covers similar goods, yours will likely be held up or refused while theirs is pending.

Filing still does two things. It puts your own date on record ahead of anyone who comes later, and if you win against their filing, your application has a path forward. At Citrus Legal, one mark is $2,600 flat, or three payments of $950, for the search, a written opinion, the application and procedural Office Actions. If the USPTO cites their filing against yours, that's a substantive Office Action, and those responses start at $1,600.

Option 4: Oppose after publication. $600 per class, plus extensions if you need them.

An opposition is where earlier use counts. You file it with the Trademark Trial and Appeal Board within 30 days of publication. The USPTO fee is $600 per class.

If you need time to decide, extensions are available if you ask before the deadline passes. The first 30-day extension has no fee. A 90-day first extension, or a further 60 days after the first 30, is $200. A final 60 days, which needs the applicant's consent or extraordinary circumstances, is $400. Everything together can't run past 180 days from publication.

The filing fee is the small part. An opposition is a lawsuit on paper, with pleadings, discovery and trial periods, and it can run well over a year. The legal work is where the money goes, and it isn't part of any flat package.

Option 5: Petition to cancel after registration. $600 per class.

If their mark has already registered, the route is a petition to cancel, also $600 per class.

Within five years of the registration date, you can rely on your earlier use and likelihood of confusion. After five years, under 15 U.S.C. § 1064, the grounds narrow to a list that includes the mark becoming generic, abandonment and fraud. "I was first" isn't on it. If you're thinking about this, the fifth anniversary of their registration is the date to know.

Option 6: Talk to them. Price varies.

A lot of these end without a proceeding. Coexistence agreements, a narrower description of their goods, a purchase of the application, or a license are all possible.

Leverage helps. If your use is earlier, a cease-and-desist letter can open the conversation, and sending one at Citrus Legal starts at $850. Even an extension of time to oppose sends a signal, because the USPTO notifies the applicant when one is filed.

Option 7: Rebrand. The cost is everything with the old name on it.

Sometimes this is the right call, especially if they were first on both counts, or the name was never central to your business. The cost isn't legal fees. It's packaging, signage, the domain, ads and the customers who know you by the old name.

If you rename, clear the new name before you print anything. A Seed search is $650 for a full search and written opinion, and it credits in full toward filing if you move forward within 14 days. Under the Citrus Guarantee, if the first search comes back high risk, you get one replacement search free.

How I'd choose

  • You used the name first, and their application is pending: file your own, and get ready to oppose when theirs publishes. Calendar the publication date.
  • You used it first, and they registered less than five years ago: a petition to cancel is open. Weigh it against a negotiated deal.
  • They were first to use and first to file: talk, or rebrand. Fighting is expensive and hard to win.
  • You aren't sure who was first: start with a search and your own records. That's the cheapest way to find out which fight you're in.

Every one of these has a deadline you don't control. Waiting is the one option that only gets more expensive.

To get your own filing moving, see how the packages work on the start page, or read about letters in both directions on the cease-and-desist page.

Questions about your name? Email us at hello@citrus.legal, or book a paid 30-minute consultation (opens in a new tab) for advice on your specific situation.

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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