What Is Trade Mark Priority?
Trade mark priority is a legal mechanism that allows an applicant to preserve an earlier filing date as the reference point for establishing rights.
In practical terms: where an application is filed later in another country, it may be treated as having been filed on the date of the first application — provided the applicable time limits and procedures are observed.
The key significance: the priority date determines who prevails in the event of a conflict between applications, or between an application and a registered mark.
Legal Basis
The right of priority is grounded in:
- the Paris Convention for the Protection of Industrial Property (1883) to which Ukraine is a party;
- Law of Ukraine on the Protection of Rights to Trade Marks No. 3689-XII (as amended on 21 May 2024);
- Regulation (EU) 2017/1001 on the European Union trade mark (EUTMR).
How Priority Works in Ukraine
Types of Priority
Two types of priority apply in Ukraine.
1. Convention priority — granted where the first application for the same sign was filed in another state party to the Paris Convention. Time limit: six months from the date of the first application.
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2. Exhibition priority — granted where the sign was first used at an official or officially recognised international exhibition. The application to the NIPO (IP Office) must be filed within six months of the date the sign was used at the exhibition. Where a priority claim is not submitted simultaneously with the application, it must be submitted within three months of the application filing date.
Both time limits are strict. The convention priority period is established by the Paris Convention and cannot be reinstated under national law.
Procedure for Claiming Priority in Ukraine
The applicant is required to:
- claim priority at the time of filing the application, or within three months of the filing date at the NIPO (IP Office);
- provide a certified copy of the first application;
- provide a translation of that copy into Ukrainian, where the first application was filed in a foreign language.
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Legal Effect
Where priority is confirmed, the Ukrainian application acquires the date of the first application. All third-party applications filed after that date for an identical or similar sign in respect of identical or related goods and services are treated as having been filed later.
Priority When Registering an EU Trade Mark (EUTM)
The EUIPO system fully recognises the right of priority in accordance with the Paris Convention and Regulation (EU) 2017/1001 (EUTMR).
Procedure for Claiming Priority at EUIPO
When filing an EUTM application, an applicant may claim priority on the basis of a first application filed in another country that is a party to the Paris Convention or a member of the WTO. The time limit is six months from the date of the first application.
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Particular Features of the EUTM System
Confirmed priority extends simultaneously to all 27 EU member states. The priority date is taken into account when assessing relative grounds for refusal — in particular, when examining oppositions filed by proprietors of earlier rights.
Priority does not override examination on absolute grounds (descriptiveness, lack of distinctive character, and so on) — those grounds are examined independently of the priority date.
Documents Required by EUIPO
EUIPO requires the number, date, and country of the first application to be indicated. A certified copy of the first application is provided only upon a specific request from EUIPO — where the data concerning the first application is available in the official online register of the country of origin, EUIPO verifies it independently through its databases (including TMview )A translation is required where the language of the first application is not an official language of the EU.
When Priority Is of Critical Importance
Priority is particularly significant in the following situations:
- simultaneous market entry across multiple countries;
- risk of an identical or similar sign being registered by a third party in the interval between filings;
- competitor applications filed during the same period;
- expansion into the EU market following a national registration.
Common Mistakes
Missing the priority deadline — the convention priority period is established by an international treaty and cannot be reinstated under national law. Once it has expired, the right of priority is lost.
Incorrect particulars of the first application — any discrepancy in the application number, date, or country may result in the priority claim being rejected.
Absence of documentary evidence — where EUIPO or the NIPO (IP Office) requests a copy of the first application and it is not provided within the prescribed time limit, priority may not be recognised.
Misunderstanding the effect of priority — priority determines the filing date but does not guarantee registration. An application claiming priority may still be refused on absolute or relative grounds that existed as at the priority date.
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Practical Example
Scenario:
- 1 March — trade mark application filed in Ukraine
- 1 June — EUTM application filed claiming priority from 1 March
Result: the EU application acquires the date of 1 March. Third-party applications for an identical or similar sign filed after 1 March will be treated as later filings. At the same time, if registered marks belonging to third parties already existed as at 1 March that could serve as grounds for opposition, priority does not eliminate that risk.
Conclusion
Priority is a procedural instrument that allows an applicant to preserve a first-mover position when expanding internationally, minimise the risk of conflicts with later applicants, and plan filings across multiple jurisdictions strategically.
The time limits are strict, the formal documentary requirements are mandatory, and errors are generally irreversible. Where there is any doubt as to whether a priority claim has been correctly formulated, it is advisable to consult an authorised representative before the relevant deadline expires.
