How to Trademark an Abandoned Trademark

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Trademark rights are acquired when a trademark is used in commerce to identify a business's products or services. These rights will last as long as the trademark is used. When a business ceases using the trademark, the rights associated with the trademark may be considered abandoned. You can acquire the rights to an abandoned trademark by taking steps to investigate the circumstances regarding when the trademark ceased being used and to begin using the trademark in your business. You should register the trademark to acquire additional protection for your right to exclusively use the trademark.

Determine when and, if possible, why the trademark stopped being used. Federal law considers a trademark abandoned when it is ceased being used with the intention not to use it again. Regardless of intent, federal law also considers three years of disuse to be prima facie evidence of abandonment.

Read More: How to Obtain a Trademark

Check the status of any registration or application to register the trademark using the database of trademark information maintained by the U.S. Patent and Trademark Office. The database includes information on federally registered trademarks or applications for trademarks that are active and abandoned -- typically marked as "dead." A search for the trademark can be performed online using the USPTO's Trademark Electronic Search System or with assistance from an online legal provider.

Check the status of any registration or application to register the trademark using the databases maintained by any state where the trademark may have been used. Each state has its own trademark registration laws and typically requires registration applications to be submitted to the secretary of state or other state agency.

Begin using the trademark on your products or services to create trademark rights from using the trademark. Although you are not required to register the trademark to create trademark rights, registering the trademark with the USPTO and with any state where you are doing business will give your trademark rights greater protection against anyone who contests your right to exclusively use the trademark.

Warnings

  • Adopting an abandoned trademark for your business does carry the risk that you may have to defend a trademark infringement lawsuit brought by the previous owner. The business that previously used the trademark may claim that it didn't abandon its right to the trademark and that the court should prohibit you from using the trademark in your business.

Tips

  • A search of trademark records is not required before submitting an application to register a trademark; however, the search may prevent you from wasting time or money in the application process, as well as your business operations, if you find information indicating the trademark is already registered.

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About the Author

Joe Stone is a freelance writer in California who has been writing professionally since 2005. His articles have been published on LIVESTRONG.COM, SFgate.com and Chron.com. He also has experience in background investigations and spent almost two decades in legal practice. Stone received his law degree from Southwestern University School of Law and a Bachelor of Arts in philosophy from California State University, Los Angeles.