CandyVerse, LLC v. Zeeth Ltd., Opposition No. 91289595 (TTAB Nov. 24, 2025) (precedential)
Here is a scenario that recently came before the Trademark Trial and Appeal Board: A foreign company files a trademark application in the United States and claims a priority date based on an earlier foreign filing. A domestic competitor argues that the foreign company's country of origin is not party to any relevant treaty with the United States, so the priority claim is invalid. The domestic company believes it filed first and should win.
In a recently designated precedential order, the Board ruled against the domestic company. The foreign applicant's priority date held up, the opposition was dismissed, and the case turned on an obscure but important question: does the trademark law of the British Virgin Islands extend reciprocal priority rights to U.S. nationals?
The answer was yes.
What Happened
Zeeth Ltd., a company organized in the British Virgin Islands, applied to register the mark CANDYVERSE for confectionery, soft drinks, and retail store services. Zeeth filed its U.S. application on May 27, 2022, but claimed a priority date of December 2, 2021 based on an earlier European Union trademark application under Trademark Act Section 44(d).
CandyVerse, LLC, a U.S. company, opposed registration and claimed it had been using the CANDYVERSE mark since at least March 4, 2022. Both sides actually agreed that the marks were identical and that confusion was likely. The only real dispute was which party had priority.
If Zeeth's December 2021 priority date was valid, Zeeth won. If it was not, CandyVerse's March 2022 use date would control and CandyVerse would win.
How Section 44(d) Priority Works
Section 44(d) of the Trademark Act allows a foreign applicant to claim the filing date of a prior foreign application as its U.S. priority date, as long as certain conditions are met. The U.S. application must be filed within six months of the foreign application. The applicant must have a bona fide intent to use the mark in commerce. And critically, the applicant's country of origin must either be party to a relevant international treaty with the United States, or must extend reciprocal priority rights to U.S. nationals by law.
Zeeth's EU application was filed in an eligible country, and the U.S. application was filed within six months. The bona fide intent requirement was satisfied. The sticking point was the third condition: the British Virgin Islands is not a member of the Paris Convention or the WTO as an independent entity, and it is not party to a standalone treaty with the United States on trademark priority.
CandyVerse argued that this disqualified Zeeth entirely.
The Reciprocity Question
The Board disagreed, and its reasoning is worth understanding.
Section 44(b) of the Trademark Act provides an alternative path: even without a treaty, a country qualifies if it extends reciprocal rights to U.S. nationals by law. The Board examined the Virgin Islands Trade Marks Act (VITMA) to determine whether it did exactly that.
Section 43 of the VITMA allows any person to claim a priority date in the British Virgin Islands based on a prior application filed in a Paris Convention country or WTO member, as long as the BVI application is filed within six months. Critically, the VITMA does not limit this right based on the applicant's country of origin. That means U.S. nationals can use it just as freely as anyone else.
The Board found that this was sufficient. The VITMA extends to U.S. nationals the same priority opportunity that Trademark Act Section 44(d) extends to foreign nationals in the United States. The rights are reciprocal, even though the specific mechanics of the two statutes differ in some respects. Reciprocity does not require the two countries' laws to be identical in every detail. It only requires that U.S. nationals have the same opportunity as the foreign country's own nationals.
Because the British Virgin Islands met that standard, Zeeth was entitled to its December 2021 priority date. CandyVerse's March 2022 use came after that date. The opposition was dismissed.
Why This Matters If You Are Building a Brand
This case establishes new precedent on a question the TTAB had never addressed before: whether a foreign jurisdiction that is not party to any treaty with the United States can still qualify under Section 44(b) based on its domestic trademark law. The answer is yes, if that law extends reciprocal priority rights to U.S. nationals.
There are a few practical takeaways worth keeping in mind.
If you are a U.S. brand owner facing a foreign applicant, do not assume you have priority just because the foreign company's country is not in a major treaty. The Board will look at the foreign country's actual trademark law to determine whether reciprocal rights exist. That analysis can go against you even in cases where you filed first in the United States.
If you are filing in the United States and have a prior foreign application, the Section 44(d) path may be available to you even if your home country is not a Paris Convention member or WTO member. The question is whether your country's trademark law extends reciprocal rights to U.S. nationals. That is a fact-specific legal question, but it is worth asking before you assume you are ineligible.
Priority disputes are decided on dates, not merits. In this case, both parties agreed the marks were identical and that confusion was likely. The entire outcome turned on a single legal question about a foreign statute. That is a reminder of why priority analysis deserves serious attention before you invest in a brand, especially if a competitor may have an earlier foreign filing date.
Common law use alone may not be enough. CandyVerse had actual use of its mark in commerce before Zeeth filed its U.S. application. That still was not sufficient to overcome a valid constructive use date established by a foreign application under Section 44(d). Constructive use under a federal application, including one based on a foreign priority claim, can defeat actual use that predates the U.S. filing.
One More Wrinkle
The Board's judgment in Zeeth's favor was entered subject to Zeeth's establishment of constructive use, meaning the judgment does not become final until Zeeth's application actually registers. If the application is ultimately abandoned, the opposition outcome could be revisited. This is a procedural feature of Section 1(b) intent-to-use applications: a party relying on constructive use cannot obtain a final judgment in its favor until it demonstrates actual use and secures registration.
If you have questions about priority, foreign filings, or how to protect your brand before a competitor gets there first, Five Dogs Law offers a free consultation. There is no obligation and no pressure.
This post is for general informational purposes only and does not constitute legal advice. Trademark clearance and priority analysis require a fact-specific review of your particular situation. Contact an attorney for advice specific to your circumstances.
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