After five years of registration, the owner of a registered trademark can make a declaration of incontestability. This declaration confirms that the trademark has been consistently used in commerce for at least five consecutive years since registration, has not become generic, and has not been involved in any final adverse decision or ongoing proceedings in the U.S. Patent and Trademark Office or courts. By making this statement, the trademark is granted immunity from certain legal challenges under § 15 of the Lanham Act.
After five years of registration, the owner of the trademark “Nike” can submit a declaration of incontestability. This statement confirms that the mark has been continuously used in commerce for at least five consecutive years since registration, has not become generic, has not faced any adverse ownership decisions, and has no ongoing legal proceedings related to the mark. By submitting this declaration, the “Nike” mark is granted immunity from specific legal challenges, such as claims of being merely descriptive or lacking distinctiveness.
A Declaration of Incontestability is a legal document filed with the United States Patent and Trademark Office (USPTO) to establish that a registered trademark is immune from certain challenges and cannot be invalidated.
To obtain a Declaration of Incontestability, you must have a registered trademark that has been in continuous use for at least five years. You can file an application with the USPTO, along with the required fee and supporting evidence of your trademark’s continuous use.
Once a trademark is declared incontestable, it provides the owner with stronger legal protection against challenges to the trademark’s validity. It becomes conclusive evidence of the trademark’s exclusive rights, making it more difficult for others to challenge or invalidate the mark.
No, not all trademarks are eligible for a Declaration of Incontestability. Only trademarks that have been registered with the USPTO and have been in continuous use for at least five years are eligible for this status.
Yes, a Declaration of Incontestability does not protect against challenges based on certain grounds, such as fraud in obtaining the registration, abandonment of the mark, or genericness of the mark.
In certain circumstances, a Declaration of Incontestability can be challenged and revoked. For example, if it is proven that the mark was obtained fraudulently or has become generic, the incontestable status can be invalidated.
A registered trademark simply means that the mark has been officially registered with the USPTO. On the other hand, an incontestable trademark has gone through an additional process and has been declared immune from certain challenges to its validity.
No, obtaining a Declaration of Incontestability is not mandatory. It is an optional step that provides additional legal protection for your trademark.
Yes, even without a Declaration of Incontestability, you can still enforce your trademark rights against infringers. However, having an incontestable trademark status can make it easier to defend your rights in court.
No, to be eligible for a Declaration of Incontestability, your trademark must have been in continuous use for at least five years. If your mark has not reached this threshold, you will have to wait until it meets the requirement before applying.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 17th April 2024.
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