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If you know you're not the first to use it, you can't register it: you have to declare on the application that you know you're the exclusive users of the term for that purpose.

If the first person to use it doesn't register it, he may also have a common law right to the mark, if he's been using it in commerce.

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Q: In the USA is a trademark owned by the first to register it or the first to use it?
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