Can I Copy a Dead Trademark & Trademark It?
Businesses often use symbols, words and phrases known as trademarks to distinguish their goods and services from other companies. Trademarks are protected by intellectual property laws in the United States, which allows trademark owners to protect their marks from use by others. If, however, a trademark goes unused for an extended period of time, the previous owner may give up ownership rights, allowing others to begin using the mark.
Other People Are Reading
-
Trademark Basics
-
A person or business can gain ownership of a trademark simply by using it in connection with their products and services. For example, if you make your own T-shirt company and invent a new symbol that you display in conjunction with your products, you are the owner of that trademark even though you did not officially register the mark. Trademark registration is a legal process that can allow trademark owners to more easily defend their marks if others try to copy them.
Dead Trademark
-
When referring to trademarks, the term "dead" does not speak to whether a trademark is actually in use or not, rather, it speaks to the state of an application for official registration of a trademark with the U.S. Patent and Trademark Office. The USPTO states that a dead trademark application is no longer under prosecution with the USPTO, so it would not be used as a bar against you filing an application to register a similar mark yourself, but if the mark is in use by someone else, he may claim common lay rights to the mark. In other words, if you try to copy or register a trademark with a dead application, you could still be sued by its owner if he uses the mark.
-
Abandoned Trademarks
-
A trademark previously owned by someone else can only be copied and registered if the previous owner has abandoned the mark. Harvard University states that a trademark is abandoned if its use is discontinued without intent to resume use of the mark in the future and that a mark that isn't used for three consecutive years is considered abandoned. If a certain mark has gone unused for three years, you could begin using the mark and attempt to register it yourself.
Considerations
-
It may be difficult to prove that the previous owner of a mark does not intend to use the mark or has abandoned use of the mark. If you copy an abandoned trademark, the previous owner could potentially attempt to bring legal action against you. It is safer to create a new trademark that is not similar to existing marks than to copy an existing one.
-
