What Is a Dead Trademark?

By Anna Assad

A trademark is a symbol, design, word, phrase or combination of these elements a business uses to identify its products to the public. While a trademark is active, its owner can take action in court against unauthorized use of the mark. A dead trademark, however, is no longer protected against unauthorized use. A mark can die for various reasons, including lack of use and misuse by an assignee.

A trademark is a symbol, design, word, phrase or combination of these elements a business uses to identify its products to the public. While a trademark is active, its owner can take action in court against unauthorized use of the mark. A dead trademark, however, is no longer protected against unauthorized use. A mark can die for various reasons, including lack of use and misuse by an assignee.

Genericity

A trademark may die if it becomes generic. The benefit of a trademark is that it allows the public to identify a product made by a particular business. Genericity occurs if the public begins to use the trademarked name to identify an item instead of a particular brand or manufacturer. If this happens, people no longer associate the product with a particular business, and thus the trademark no longer has meaning. For example, "thermos" is no longer an active trademark because the public widely used the term to describe insulated containers from different manufacturers.

Protect your brand. Register My Trademark Now

Abandonment

Trademarks die if abandoned by the owner. Abandonment is construed from the actions of the owner, so the exact circumstances of trademark abandonment may vary by case. Not using a trademark for three years or more is usually considered abandonment.

Poor Licensing

A trademark owner is responsible for watching other entities he licenses his trademark to. Since his mark is supposed to represent his product, he needs some measure of control to make sure the licensee is producing that product. For example, an owner of a store chain may license his trademark to a person who bought into the franchise, but he must have some sort of supervision and quality control program in place for the franchisee. If he doesn't, some courts may view this as relinquishing the trademark, effectively killing it. Trademark problems arising from poor licensing are usually decided on a case-by-case basis.

Assignments

Although a trademark owner can assign all ownership rights to the mark to another party, there must be a sale of assets involved or he risks killing the mark. Assignments without an accompanying sale may result in a dead trademark because the trademark no longer appears to be fulfilling its purpose. The purpose of a trademark is to identify a specific product. If the owner sells the mark only, the mark will no longer represent the product it was intended for.

Owner Rights

The owner of a dead trademark registration may still be able to enforce his rights. Trademarks don't require federal registration, but registration with the U.S. Patent and Trademark Office makes it easier for owners to enforce their rights to the mark. Without a valid registration, the owner may still be able to prove the mark is active and alive in court under common law rights, which are rights that don't require formal registration for legal enforcement.

Mark Revival

An owner may revive a dead mark if the registration lapsed through no fault of the owner's. For example, if the U.S. Patent and Trademark Office cancels a mark's registration based on the belief that the owner didn't respond to a request from the office but the owner can prove that he did respond, the office may revive the mark.

Zombie Mark

A dead trademark may come back to life through revitalized branding. A dying or dead brand is resurrected, often by another company, and the trademark comes back to life as a result. Since the public may remember the trademark from its active days, the new owner benefits from the lingering brand recognition.

Protect your brand. Register My Trademark Now
What Is a Trademark's Duration?

References

Related articles

What Is the Consequence of Not Policing Your Trademark?

Trademark is any design, word or phrase that uniquely identifies your company's goods or services. Trademark rights attach when you are the first to use the mark in commerce, or when you register a mark with your state or federal trademark office. Registration bolsters trademark protection and allows the holder to sue infringers in federal court. Actively policing a trademark is necessary to ensure it is not deemed invalid.

Logo & Trademark Rules in the US

The U.S. Patent and Trademark Office defines a trademark as "a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others." A logo is a distinctive graphic design element that may be included in a trademark. Trademarks are governed by both state and federal law.

Expiration of Trademark Registration & Abandonment

A trademark is a combination of words or symbols that identifies and distinguishes a product or service of an individual or company. Commercial use automatically creates common-law trademark rights that last as long as the mark remains in commercial use. You can also register and maintain a trademark with your state or with the U.S. Patent and Trademark Office. Federal registration and maintenance is more expensive, but it provides a public record of the trademark claim and the ability to sue in federal court to protect your rights. You must periodically renew and monitor your claim to prevent expiration or abandonment.

File a Trademark Online. LegalZoom. Learn More.

Related articles

Difference Between a Licensed Mark and a Trademark

The ins and outs of intellectual property law can be a complex minefield if you don't have the right information at ...

Breach of Trademark Effects

A trademark is a brand name -- and includes any word, symbol, device, or combination thereof that distinguishes the ...

What Is the Difference in a Trademark & Brand Monopoly?

If your company sells products, one of your major goals is to increase the market share of your goods over those of ...

Do I Need to Trademark My Clothing Lines?

A clothing line owner automatically gains trademark rights in its name, logo and slogan. Trademarks include any unique ...

Browse by category