An incontestable trademark is a mark that is generally immune from being challenged. After five years of consecutive use from the date of federal registration with the United States Patent and Trademark Office (USPTO), a trademark becomes eligible for incontestability. Incontestable trademarks are typically immune as long as they have not become the generic term for the goods, the mark has not been abandoned for nonuse, and the registration was not acquired on fraudulent grounds.
You can request federal incontestability by filing a Declaration of Incontestability between the fifth and sixth anniversary of the federal trademark registration.
The term "incontestability" may give the impression that a trademark is invincible, but what it actually means is that it is simply much more difficult to challenge. A trademark owner may try to prove incontestability in infringement cases. If he or she can prove that the mark is incontestable, it will be deemed valid unless the opposing party can establish a variety of circumstances, including but not limited to:
In the event of a lawsuit regarding trademark infringement, holding an incontestable status provides significant advantages. Some of its benefits include:
Once your trademark reaches its fifth birthday, you may want to consider filing a Declaration of Incontestability. As long as the mark fulfills the requirements for incontestability according to federal intellectual property law, you will be granted immunity from a variety of legal challenges.
Whenever you are dealing with intellectual property laws, it is advisable to hire an excellent intellectual property attorney in your area. Oftentimes, even straightforward laws can have hidden requirements or consequences. A professional attorney will help you avoid any issues you may run into while dealing with intellectual property.