A claimant to trademark or service mark rights may rest its claim, in part, upon use of the same mark at an earlier date for a purpose which permits the earlier use to be "tacked" onto the later use, to give the later use a priority over a competing use by a third party which the later use might not otherwise have.

In our particular case, Big argues that it should be permitted to tack its use of TaxHQ in 1997-2004 as a name of its newsletter onto its use of TaxHQ (as a part of the mark Big TaxHQ) as a service mark for the services of Big. If the court permits tacking, then use of the TaxHQ mark by Big for its services would be considered as if it started in 1997. The result, of course, would be that Big would have priority with respect to TaxHQ over Small's TaxHQ mark.

Big has other arguments to support its claim that its rights are superior to those of Small and the failure to allow "tacking" is not necessarily fatal to its case. If tacking were its only hope, however, and if the court would refuse to permit tacking, then Small would have priority over Big with respect to any use by Big of TaxHQ except its use as the name of the newsletter.

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