Someone filed a trademark application for your brand name: what can you do?

Finding your own brand name in someone else's trademark filing is unsettling, but the federal system builds in several ways to object. Which one you use depends on timing, on whether you hold a federal registration or application of your own, and on what evidence you have. This page walks through each tool, the deadlines and USPTO fees in effect in October 2026, and what to gather first. For the bigger picture of clearance, registration and enforcement, see our main copyright and trademark law page.

How a challenge to someone else's filing works, step by step

1. Find the record. Look up the other filing in the USPTO's Trademark Status and Document Retrieval (TSDR) system. Note the serial number, filing basis, goods or services and status, and whether it came through the Madrid system under Section 66(a).
2. Before publication, consider a letter of protest. If you own a conflicting federal registration or earlier application, or have objective evidence of another ground for refusal, you can file a letter of protest through TEAS for $150 (37 CFR 2.149).
3. Watch for publication. Once the mark is published in the Official Gazette, anyone who believes they would be damaged has 30 days to oppose or to ask for more time (15 U.S.C. 1063(a)).
4. Extend or file. Through ESTTA, the Board's filing system, request an extension before the current deadline ends, or file the notice of opposition: a short and plain statement of why you would be damaged, plus the grounds (37 CFR 2.104(a)).
5. The case runs at the Board. The applicant answers, both sides exchange discovery and put in evidence, and the Board decides on a written record. Our page on the TTAB opposition process sets out each stage and its rule-based period.
6. After registration, cancel instead. If the opposition window closed and the mark registered, a petition to cancel at the same Board takes the opposition's place, within the time limits of 15 U.S.C. 1064.

The table shows each option by stage of the other filing, with the USPTO fees in effect in October 2026.

When does a letter of protest help, and when does it not?

A letter of protest lets a third party put objective evidence in front of the examining attorney without becoming a party to anything (37 CFR 2.149). It is narrow by design: the most common subjects are your own federal registration or earlier-filed federal application that is likely to be confused with the new filing, evidence that the term is generic or merely descriptive, and evidence that the specimen does not show real use (TMEP 1715.01(a)).

It is not the place to argue that you used the name first. The manual says earlier common-law use, state registrations and similar claims are not appropriate in a letter of protest, because an examining attorney can only weigh federal registrations and prior-pending federal applications (TMEP 1715.01(b)). Someone relying on use alone usually needs an opposition instead.

The evidence is capped at 10 items per ground and 75 pages in total unless you explain why more is needed, and the protester hears back only whether the letter was received and complied (37 CFR 2.149(f), (j)). After publication, the evidence must make a prima facie case for refusal, a higher bar (37 CFR 2.149(d)).

How do you oppose, and how long do you have?

An opposition is filed with the Trademark Trial and Appeal Board within 30 days after publication. If you need time to investigate or talk with the applicant, extensions come in fixed steps: first 30 days on request or 90 days for good cause, then 60 more for good cause, then a final 60 days only with the applicant's consent or extraordinary circumstances, never past 180 days from publication (37 CFR 2.102(c)).

The most common ground is likelihood of confusion, which the Board's manual calls the issue it sees most often in these cases (TBMP 309.03(c)(2)). The Board weighs the du Pont factors, such as the similarity of the marks and the relatedness of the goods, so our page on how the USPTO judges likelihood of confusion is a useful preview of the arguments.

What if the mark has already registered?

Then the tool is a petition to cancel. During the first five years after registration, any ground that would have blocked registration can be raised, including likelihood of confusion with your earlier mark. After five years the grounds narrow to things like genericness, functionality, abandonment and fraud on the USPTO (15 U.S.C. 1064).

Nonuse has its own routes: cancellation any time after the third anniversary if the mark was never used for some or all of the listed goods or services (15 U.S.C. 1064(6)), expungement of never-used marks between 3 and 10 years after registration (15 U.S.C. 1066a), and reexamination of use-based registrations within their first 5 years (15 U.S.C. 1066b). If the other owner simply stopped using the mark, see our page on losing a trademark through nonuse.

Does using the name first protect you?

Often it helps, but it has to be proved. A federal application, once it registers, gives the applicant nationwide priority as of the filing date. One of the statutory exceptions is a person who was already using the mark before that date and has not abandoned it (15 U.S.C. 1057(c)). If a registration later becomes incontestable, a prior user's defense is limited to the area where its continuous prior use is proved (15 U.S.C. 1115(b)(5)).

A state registration does not change this picture much at the USPTO, for the reason above. Our page comparing Georgia, federal and common law trademark protection covers what each one does.

Should you file your own application now?

Filing now will not jump the queue. When two pending applications conflict, the USPTO gives priority to the one with the earlier effective filing date, regardless of who used the mark first (TMEP 1208.01). The later application can be put on hold, which the USPTO calls suspension, while the earlier one is decided, and the USPTO reviews suspended applications every six months. A new filing can still make sense alongside an opposition.

If either side is based outside the United States, U.S. counsel rules apply to Board proceedings too. See whether a foreign company needs a U.S. trademark attorney.

What changes the answer

• Whether you own a federal filing. A registration or earlier application you own can support a letter of protest (TMEP 1715.01(a)). In an opposition, priority is not in issue when you plead and prove a registration you own, unless the applicant counterclaims or petitions to cancel it (TBMP 309.03(c)(2)).
• Whether you rely on use alone. Without a federal filing, you must plead and prove rights earlier than the applicant's, shown for example by prior trademark use or use analogous to trademark use (TBMP 309.03(c)(2)). The applicant's filing date counts as constructive use once its mark registers (15 U.S.C. 1057(c)), so your dated proof has to reach back before it.
• Your entitlement to bring the case. The Board requires a real interest in the proceeding and a reasonable belief in damage, which its manual now calls an entitlement to a statutory cause of action (TBMP 309.03(b)). A competitor selling the same or related goods can show it, for example when descriptiveness is the ground.
• A Madrid-based application. An opposition to a Section 66(a) application must be filed through ESTTA and is limited to the goods, services and grounds on the ESTTA cover sheet; grounds cannot be added later (37 CFR 2.104(c), 37 CFR 2.107(b)).

A worked example

Common mistakes

• Filing a letter of protest that argues you used the name first. Prior common-law use is not an appropriate subject (TMEP 1715.01(b)), so the fee buys nothing.
• Treating a letter of protest as a pause button. It does not stay or extend the time to oppose (37 CFR 2.149(e)).
• Asking for a 60-day extension as the first request. The rule allows only 30 days, or 90 days with good cause, as a first extension (37 CFR 2.102(c)(1)).
• Requesting an extension the day after the window closed. Each request must be filed before the current period expires (37 CFR 2.102(c)).
• Taking extensions in the founder's personal name and then opposing as the company. The opposition must come from the person granted the extension or someone in privity with it (37 CFR 2.102(b)).

What to do this week

1. Pull the other filing's TSDR record, note the serial number, filing basis, status and any publication date, and calendar day 30 after publication.
2. If you own a federal registration or earlier application, check whether a letter of protest is still open: any time before publication, or within 30 days after it.
3. Decide which person or company will oppose, and use that exact name on every extension request.
4. Collect dated proof of first use (invoices, release dates, dated screenshots with URLs, social posts) and any messages showing people mixing the two names up.
5. Hold off on contacting the applicant until you know which route you are taking. Our post on cease and desist letters explains what a first letter can and cannot do.
6. Check whether the same filer also registered a domain name with your brand in it. If so, our page on recovering a domain name registered in bad faith explains the separate routes for that.

Frequently asked questions

Can you oppose if you never registered the name anywhere?

Yes. Priority in an opposition can rest on prior trademark use or use analogous to trademark use, not only on a registration (TBMP 309.03(c)(2)). If the name belongs to a band or performer, our page on band name trademarks explains how those names are registered.

If you win, does the other business have to stop using the name?

Not by itself. The USPTO says the Board decides only the right to register and does not issue injunctions halting use or award damages. Stopping use takes a court case; our page on a trademark lawsuit in Atlanta federal court explains how that works.

What if the applicant has not started using the name yet?

An intent-to-use applicant's filing date counts as constructive use only if the mark registers, and the statute excepts anyone who used the mark before that date and has not abandoned it (15 U.S.C. 1057(c)). The applicant also has to file a verified statement of use, with specimens, before a registration issues (15 U.S.C. 1051(d)). Our post on registering a trademark in 8 steps covers that step.

Do you have to oppose every class in the application?

No. You choose the classes and pay $600 for each class you oppose, for each named opposer (37 CFR 2.101(c)). Choose carefully, because goods and services cannot be added after the opposition period closes (37 CFR 2.107(a)).

Can you and the applicant simply agree to share the name?

You can try. The USPTO says settlement talks at the Board usually end in withdrawal of the proceeding or the application, or an amendment to it. An applicant can narrow its description of goods or services but can never broaden it (37 CFR 2.71(a)). When both brands can live side by side, our page on trademark coexistence and consent agreements explains what makes such a deal hold up.

When does the other registration become incontestable?

A registered mark used continuously for five consecutive years after registration can become incontestable once its owner files a Section 15 affidavit, as long as no challenge is pending (15 U.S.C. 1065). Our page on trademark maintenance deadlines and fees covers that filing.

Zala IP Law handles letters of protest, oppositions and cancellations before the USPTO for clients across the United States and internationally. If your name appears in someone else's filing, request a consultation or call 404-313-1701 with the serial number and your earliest dates of use.