First to File
What is First-to-File?
This means that the first person or entity that applies for a trade mark, will obtain registration and may prevent others from using it. This person / entity will have the rights thereto, regardless of whether another have built up a reputation with the mark in that country. This is known as First to File.
The First to File rule applies to the OAPI system, which covers all of the member countries. It is not possible to register trade marks in these individual countries, separately. OAPI members are Benin, Burkina Faso, Cameroon, Comoros, the Republic of Congo, Côte d’Ivoire, Gabon, Guinea, Guinea-Bissau, Equatorial Guinea, Mali, Mauritania, Niger, Central Africa Republic, Senegal, Chad and Togo.
In countries such as South Africa or the United States of America, it is not registration but actual use of a mark that creates rights and priority over others. Thus, the ownership of a mark goes to the First to Use, not the First to File.