When should you file your trademark application—before launch or after your doors open? The Cheerleader Pub & Grill case shows why the safest (and smartest) answer is: file early.
What happened in Cheerleader Pub & Grill?
A company called Private Label, LLC filed a trademark application for CHEERLEADERS BAR & GRILL on July 22, 2013. A few weeks later, a restaurant called Cheerleader Pub & Grill opened and began using a very similar name. When Cheerleader tried to block the application, the Trademark Trial & Appeal Board dismissed Cheerleader’s likelihood-of-confusion claim because it couldn’t prove rights earlier than Private Label’s filing date. Filing first won the priority fight.
Why the earlier filer won: “constructive use”
Under Lanham Act §7(c), the act of filing a U.S. trademark application (that later matures to registration) gives the applicant a constructive date of first use as of the filing date—nationwide and for the goods/services in the application. That constructive-use priority controls against later users (with narrow exceptions for prior, non-abandoned users).
In Cheerleader, the Board compared two dates:
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Applicant’s constructive-use date: July 22, 2013 (the filing).
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Opposer’s first actual-use date: September 2013 (restaurant opening).
Result: Opposer couldn’t establish earlier rights, so its §2(d) attack failed—even though it ultimately opened and used the mark in the real world.
“We’re not open yet—can we still file?”
Yes. Use an Intent-to-Use (ITU) filing to lock in your priority now and submit proof of use later. Just remember: advertising alone isn’t “use.” For services, the law requires that you actually render the service before you claim use (another reason ITU is so valuable while you prep for launch).
What if we’re a few days behind?
In close contests, days matter. The Board and courts routinely decide priority on very tight timelines, so waiting to file until opening day (or after) can be costly. The Cheerleader outcome turned on a gap of weeks, not months.
If you’re considering registering a trademark, it’s time to speak to a trademark attorney.
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Related resources
Legal citations for the curious:
- 15 U.S.C. § 1057(c) (constructive use & priority). (Legal Information Institute)
- TTAB weekly decisions (May 7–11, 2018) noting Cheerleader Pub & Grill disposition. (USPTO)