Also known as: priorities of use · priority-of-use · prior use · prior appropriation
Written by attorneys — see sources below.
2 senses
A rule resolving irreconcilable conflicts between separate servitudes granting use rights in the same property. Priority is determined by the order in time of the servitudes' creation unless a later-created servitude takes free under an applicable recording act.
A rule resolving irreconcilable conflicts between separate servitudes granting use rights in the same property. Priority is determined by the order in time of the servitudes' creation unless a later-created servitude takes free under an applicable recording act.
The principle that ownership of a trademark is acquired solely through the first actual use of the mark in the sale of goods or services in commerce rather than by mere invention or registration.
The principle that ownership of a trademark is acquired solely through the first actual use of the mark in the sale of goods or services in commerce rather than by mere invention or registration.
Each sense below has its own examples, sources, and questions.
Peter Park granted Prism Analytics an easement across his retained parcel for truck access to a loading dock in 2015. Two years later he granted Prime Logistics a separate easement over the same drive for delivery vehicles. When the routes proved incompatible during peak hours, the court applied priority of use and enforced the 2015 easement first because it was created earlier in time.
1 common questions
When two servitudes conflict irreconcilably, priority of use is determined by the order of creation unless a later servitude takes free of an earlier one under the applicable recording act.
Supporting sources
Priscilla Parks began selling clothing under the mark PERSONS in the United States in April 1982. Phoenix Technologies later adopted the identical mark for similar goods and sought registration. Because Parks had used the mark first in actual sales, the court recognized her superior rights under priority of use and denied Phoenix's claim.
In 1955 respondent Ives Laboratories, Inc. received a patent on the drug cyclandelate. Ives marketed it under the registered trademark CYCLOSPASMOL in blue 200 mg capsules imprinted Ives 4124 and blue-red 400 mg capsules imprinted Ives 4148. Ives promoted the drug primarily to physicians through personal visits distributing product literature and starter samples. After the patent expired, Ives focused its efforts on convincing physicians to indicate on prescriptions that generic substitution was not permissible. After the patent expired in 1972 petitioners Inwood Laboratories, Inc., Premo Pharmaceutical Laboratories, Inc., and MD Pharmaceutical Co., Inc. began selling generic cyclandelate in capsules of identical colors and form. They promoted the products through catalogs sent to wholesalers, hospitals, and pharmacies that described them as equivalent or comparable to CYCLOSPASMOL and sometimes listed prices and capsule colors. The generic products reached the market in bulk containers correctly indicating the manufacturer. Ives filed suit in the United States District Court for the Eastern District of New York under sections 32 and 43(a) of the Lanham Act and New York unfair competition law. Ives alleged that the petitioners' look-alike capsules and catalog references induced pharmacists to mislabel generic cyclandelate as CYCLOSPASMOL. Ives sought an injunction against marketing in the same colors and damages. The District Court denied a preliminary injunction in 1978 and after a bench trial entered judgment for the petitioners in 1980. The court found that the petitioners had not suggested improper substitutions. Instances of mislabeling were infrequent and stemmed from pharmacists' misunderstanding of state substitution law rather than deliberate passing off. The court also found the capsule colors functional for patients, doctors, and hospitals. The colors lacked secondary meaning. The Court of Appeals for the Second Circuit affirmed the denial of preliminary relief in 1979 but after trial reversed the judgment for the petitioners in 1981 on the section 32 claim. The Supreme Court granted certiorari in 1981.
View case2 common questions
No. Trademark ownership requires the first actual use of the mark in commerce on goods or services. Registration alone does not confer ownership if another party used the mark earlier.
Supporting sources
Priority of use is measured by the first use in the United States. Foreign use alone does not establish rights against a party that begins use in domestic commerce first.
Supporting sources
…of concurrent rights by users in distinct geographic areas if the subsequent user adopted the mark without knowledge of prior use. See Hanover Star Milling Co. v. Metcalf , 240 U. S. 403, 415-416 (1916) (describing pre-Lanham Act law). Similarly, § 14 cuts off certain grounds for cancellation five years after…