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In the United States, trademark rights generally go to the first to use a mark in commerce as opposed to the first to file a mark with the trademark office. But what does that really mean? A recent trademark dispute case, Nexsan v. EMC, made headlines because it seemed to turn that basic premise on its head, awarding trademark rights in the mark “Unity” for data storage systems to the first to file, Nexsan, although EMC claimed use of the mark a year before Nexan’s filing. What drove the decision? While EMC had used the name, it had done so inconsistently, internally, and under strict confidentiality agreements. The court concluded that use with customers under confidentiality restrictions did not constitute public use in commerce as required to establish trademark rights. There are lessons here for protecting intellectual property as you develop new products. Join Kandis Koustenis and Jennifer Atkins as they explain the first use doctrine in trademark, the interaction between trademark and patent law in terms of the impact of public disclosure, the advantages to early trademark filing, and ways you can protect your intellectual property rights during product development.
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