When a new U.S. trademark application collides with TRO defense, Attorney Shen Jinlong discusses in 2026 which to do first and how to run frozen funds and the trademark application in parallel.

Which should be done first? If a TRO has already frozen your accounts, the priority should be responding to the TRO—an asset freeze under a Temporary Restraining Order (TRO) directly affects cash flow, and a motion for default judgment can typically be filed by the plaintiff within 21 days after you receive notice; whereas filing a new U.S. trademark application one or two months later will not cause you to lose priority because of the TRO, unless you are right at the deadline for submitting evidence of use under a 1(b) intent-to-use application. The two can proceed in parallel, but the order and pace must be clearly prioritized.

A TRO freezes money, while a trademark application requires time—the losses are not equivalent.

Many clients encountering a TRO for the first time instinctively ask, "Can I still register my trademark?" — but that's the wrong question. A TRO is a temporary remedy under Rule 65 of the Federal Rules of Civil Procedure. Once a court issues one, platforms (Amazon, eBay, TikTok Shop, etc.) enforce freezes in accordance with the injunction, and PayPal, Payoneer, and bank accounts may likewise be subject to deductions. The chain reaction of frozen funds includes broken payment terms in the supply chain, declining store performance metrics, and unsold inventory. By contrast, a new trademark application with the United States Patent and Trademark Office (USPTO) typically takes only a few days from submission to issuance of a filing receipt. Even if you file 30 days late, as long as no one else has filed first, the deferral of your filing date does not affect the substantive examination outcome. The time cost is far lower than the price of a cash flow breakdown.

The response deadline is only 21 days, and both motions and extensions cost money.

After receiving a TRO, the defendant typically has 21 days from notice to decide whether to move to dissolve or modify the injunction, with the specific deadline governed by the court order and local rules. Miss that window, and the plaintiff can seek a preliminary injunction, converting the freeze from temporary to interim and instantly tilting the negotiating leverage. In practice, we generally advise clients to complete three tasks within 7 days of receiving a TRO: confirm the scope of the freeze, verify the basis of the plaintiff’s trademark and patent rights, and assess the costs of the two paths—settlement and litigation. A motion for an extension is not free; the court may require a showing of good cause, repeated extensions will wear down the judge’s patience, and they will also lead the plaintiff to raise its demands in settlement negotiations.

A new trademark application will not be proactively halted by the USPTO because of a TRO.

The USPTO is an administrative examination authority, while a TRO is a temporary remedy issued by a federal court; the two proceedings are independent of each other. Unless the plaintiff has simultaneously filed an opposition or cancellation proceeding with the USPTO in the litigation, or has challenged your application before the Trademark Trial and Appeal Board (TTAB) on grounds of alleged fraud, your new U.S. trademark application can proceed as normal despite the TRO. It should be noted that if the plaintiff already holds a prior registration for an identical or similar mark, your application may receive a likelihood of confusion refusal under 15 U.S.C. §1052(d) during substantive examination. In that case, the defense strategy in the TRO case and the response strategy in the trademark application must be coordinated, so as to avoid saying one thing in court and another before the USPTO, which the opposing party could use as adverse evidence.

During the period of fund freezing, how are the application fees and attorney fees prioritized?

The USPTO's TEAS Plus application official fee is currently $250 per class, and TEAS Standard is $350 per class. Adding agent fees, the total cost of a basic application typically ranges from several thousand to just over ten thousand RMB. Compared with TRO settlement amounts, which often run from several thousand to tens of thousands of US dollars, the cost of a trademark application is minor. However, when funds are frozen, many sellers prioritize reserving cash for settlement and push the trademark application to the back burner. Our judgment is this: if the trademark is the core brand of your store and you intend to continue selling in the US market, the trademark application cannot be paused—because once the plaintiff lists your brand as an infringing mark in litigation, any subsequent application you file will face greater obstacles from prior rights. You can first submit the application to secure the filing date, then concentrate your resources on handling the TRO. For more pathways for cross-border intellectual property layout, please refer to the overseas intellectual property service description.

When proceeding in parallel, there is a particular order to which document is signed first and which is signed later.

Parallel work does not mean doing everything at once without coordination. The sequence we generally recommend is: first sign the engagement documents for responding to the TRO, so that counsel can complete court appearance and negotiation preparation within the 21-day window; at the same time, prepare the trademark application materials, including the trademark drawing, the goods/services, and evidence of use or a declaration of intent to use. If the trademark application is filed on a 1(b) intent-to-use basis, a declaration of use must subsequently be submitted within 6 months after the notice of allowance (extendable 5 times, 6 months each). This timeline may overlap with the TRO litigation cycle, so scheduling must be planned in advance. For brand protection involving both the United States and the European Union, please refer toUS and EU trademark and patent filing page.The process description herein. Trademark applications and TRO defense responses share the same factual basis, but the documents submitted externally must maintain a consistent position to avoid self-contradiction.

Trademark clauses that must be clearly stated in a settlement agreement

Most TRO cases end in settlement, and that is fine. The problem is that if a settlement agreement only addresses compensation and cessation of sales without defining the boundaries of trademark rights, it leaves substantial future risk. In the settlement agreements we have reviewed, common omissions include: failing to specify whether the plaintiff will withdraw its opposition to the trademark at issue, failing to clarify whether the defendant may continue to apply for its own trademark, and failing to delineate the territorial and category scope of future use. If the plaintiff has a parallel opposition proceeding before the TTAB, the settlement agreement should provide for its withdrawal as well. Without such provisions, you may have paid the settlement amount while your trademark application remains blocked by the other party. For cases involving cross-border trademark disputes intertwined with TROs, we recommend having the same team coordinate the matter; for details, please see our intellectual property legal services in other countries.

When the budget is limited, should you protect the account first or the brand first?

There is no standard answer to this question, but there is a framework for making the judgment. If the frozen amount accounts for more than 30% of your cash flow, and the plaintiff's claimed damages are significantly higher than your annual profit, prioritize negotiating a settlement to unfreeze the funds; the trademark application can wait, but no more than 60 days. If the frozen amount is manageable and your brand already has some goodwill in the United States, prioritize preserving your trademark application date, while using a litigation posture to drive down the settlement demand. In practice, when plaintiff's counsel sees that the defendant has an attorney appearing in court and has taken action on a trademark application, the demand is usually more reasonable than when facing a defendant in default. Responding to the TRO and filing a new trademark application are not an either-or choice—it is a matter of pacing.

Shen Jinlong LawyerGuangdong Zhiming Law Firm's foreign-related intellectual property team has long handled trademark, patent, and copyright matters in the United States and the European Union, focusing on cross-border e-commerce TRO responses, new U.S. trademark applications, and overseas intellectual property portfolio planning. Consultation hotline: 4008-363-555.

Disclaimer: The content of this article is a general sharing of legal information and does not constitute legal advice for any specific case. The procedural rules of U.S. federal courts, USPTO examination standards, and platform policies may be adjusted at any time. For specific cases, please consult a licensed attorney in light of the facts and the latest laws and regulations.