Everyone, Robert and I were partners in an ad agency in Las Vegas back in the 90s. He’s a good guy.

Here’s how the trademark thing works. You file for federal trademark registration with the USPTO. They either grant or deny your application based on how unique they deem your mark (or service, in the case of servicemarks). Then they publish the trademark “for opposition.” That date is important because it means if you go 5 years without anyone challenging (or “opposing”) your trademark, your trademark is uncontestable from then on — no one can challenge your trademark making your registration essentially invincible.

ING’s Filing Date: March 20, 2002
Published for Opposition: August 12, 2003
ING’s Registration Date: January 1, 2008

Hey, look at that: 5 years have passed since the trademark was published for opposition (August 12, which, ironically, is the same day PNC applied for its Punch the Pig trademark). Now, it doesn’t matter if anyone was using orange balls before ING. It’s too late. This trademark is now uncontestable.

Now if someone had been using orange balls before ING and had challenged the USPTO’s decision to grant the ING trademark, things might be different and financial marketers wouldn’t have to worry when they make a bullet-list in orange (just kidding).

Can’t someone else prove first-usage of the orange circle? Or does first-usage not count once a trademark has been established?