Generally speaking, the owner of a mark is the person who is first to use that mark in commerce. This is known as the race to the marketplace test. In the case of unregistered marks, protection only extends to the areas where marked products are sold or advertised, where their reputation is established, or where the owner is reasonably expected to reach in the normal expansion of their business.
Registered marks automatically receive nationwide protection regardless of where they are used.
If two people use the same mark in the same region, the right to use the mark will be given to the first person to use the mark in that region.
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If one of the marks is registered, the unregistered mark will only prevail if it was in use before the application for the registered mark was filed, and the unregistered mark will only prevail in the area(s) where it was in use.
Technically speaking a Priority Right or Right of Priority is a time- limited Right, triggered by the first filing of an application for a patent, an industrial design or a trademark respectively.
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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 invention, design or trademark and benefit, for this subsequent application, from the date of filing of the first application for the examination of certain requirements.
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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 6 months for industrial designs and trademarks and 12 months for patents and utility models. The period of priority is often referred to as the “priority year” for patents and utility models.