9th Cir. Model Jury Instr. (Civil) 15.13

The law entitles the trademark owner to exclude others from using that trademark. A person acquires the right to exclude others from using a trademark by lawfully using it first in the marketplace or by lawfully using it before the alleged infringer. [A person also acquires the right to exclude others from using a trademark if industry or public usage creates, for a majority of [relevant] consumers, an association between the person and the mark prior to the alleged infringer’s use.]

[If you find the plaintiff [name]’s [describe trademark] to be valid [that is, inherently distinctive] you must consider whether the plaintiff [name] used the [describe trademark] as a trademark for plaintiff [name]’s [identify the plaintiff’s product] before the defendant [name] began to use the [describe trademark] to market its [identify the defendant’s product] in the area where the plaintiff [name] sells its [identify the plaintiff’s product].]

[A trademark is “used” for purposes of this instruction when it is transported or sold in commerce and the trademark is attached to the product, or placed on its label or container [or if that is not practical, placed on documents associated with the goods or their sale].]

[If the plaintiff [name] has not shown by a preponderance of the evidence that the plaintiff [name] used [describe trademark] before the defendant [name], then you cannot conclude that the plaintiff [name] is the owner of the trademark [for purposes of Instruction [insert number of instruction regarding Infringement—Elements—Presumed Validity and Ownership—Registered Marks, e.g., 15.8].]