Incontestability Status (Trademark) Law and Legal Definition
The owners of federal trademark registrations can prohibit challenges pertaining to the owner's exclusive rights in a mark and therefore, provide incontestability status. Incontestability can help prevent attacks on the basis that the mark is confusingly similar to another mark, that it is functional, or that it lacks secondary meaning. Incontestability status does not mean a mark is attack-proof. However, the most expensive challenges to defend against are virtually eliminated when the trademark owner possesses an incontestable mark.
Incontestable marks are subject to challenges such as:
1. the mark is generic,
2. the mark was obtained through fraud in registration,
3. the owner has abandoned of the mark,
4. the mark misrepresents the source of goods or services, or it is scandalous in nature,
5. defendant's use is a fair use of the mark,
6. defendant's adoption and use of the mark was prior to plaintiff's registration,
7. defendant's registration of the mark was prior to plaintiff's registration, or
8. the mark is used to violate anti-trust laws.
