What is the Priority Right?

A priority right is a time-limited right, triggered by the first filing of an trademark application.

The priority right belongs to the applicant or his successor in title and allows him to file a subsequent application in another country for the same trademark and benefit, for this subsequent application, from the date of filing of the first application for the examination of certain requirements.

When filing the subsequent application, the applicant must "claim the priority" of the first application in order to make use of the right of priority.

The period of priority, i.e. the period during which the priority right exists, is usually from 6 to 12 months, depending on the country of registration of the second trademark.

The "Paris Convention priority right", is probably the most widely known priority right. It is defined by its Article 4 A.(1) and is a "priority right" under a multilateral arrangement, defined by Article 4 of the Paris Convention for the Protection of Industrial Property of 1883. Any person who has duly filed an application of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority ''during the periods hereinafter fixed..'' Article 4 B. of the Paris Convention describes the effects of the priority right: ''Consequently, any subsequent filing in any of the other countries of the Union before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval, in particular, another filing, the publication or exploitation of the invention, the putting on sale of copies of the design, or the use of the mark, and such acts cannot give rise to any third–party right or any right of personal possession.''

Article 2 paragraph 1 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) in conjunction with the Paris Convention provides a "derived" Convention priority right. That is, while WTO members need not ratify the Paris Convention, they should however comply with Articles 1 through 12, and Article 19, of the Paris Convention. For a comparative list of the States party to the Paris Convention and the members of the WTO, see for instance States Party to PCT/Paris/WTO] on the WIPO web site.

Some priority rights, called "internal priority rights", are defined by some national laws. Such internal priority right allows an applicant who filed a first application in a given country to claim the priority of the first application when filing a subsequent application in the same country. The Paris Convention does not cover internal priority rights. See, e.g., provisional application in the US.

Some priority rights also exist on the basis of bilateral agreements. A bilateral agreement between a first and a second country may allow an applicant who filed an application in the first country to claim the priority of the first application when filing a second application in the second country. These kinds of bilateral agreements usually involve at least one country not party to the Paris Convention.

Under most of the jurisdictions, the priority claim needs to be done upon filing, under the sanction of loosing such right.

In case that you have some prior identical filing in other countries or under the protection of some treaties, please tell us about such filings and we will check if you may claim a priority right for the subsequent filing, in order to claim the date of the first application as filing date.