What Is the Consequence of Not Policing Your Trademark?

By Cindy Hill

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.


Trademark rights can last forever, as long as you continue to use the mark in connection with goods or services in commerce. Courts deem a trademark to be lost through abandonment if the holder does not use the trademark for three consecutive years. Actively managing trademarks to ensure they are publicly used on an ongoing or periodic basis can prevent the trademark from being canceled due to non-use.

Generic Use

A trademark can be lost due to genericity, or the process of becoming generic over time, if the owner doesn't promptly object to people using the mark as an ordinary verb or noun. Terms like "thermos," "aspirin," and "cellophane" were once corporate trademarks, but lost their trademark status once the terms passed into the general public lexicon. Courts include the degree to which a trademark owner has policed her trademark as a factor considered when determining whether trademark protection should be voided due to genericity.

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Failing to police your trademark can result in losing the right to bring a lawsuit for infringement against someone who is using a similar mark. Delay in filing infringement lawsuits when you are aware someone is using your trademark gives rise to a legal concept known as "laches," which effectively means that you are locked out of asserting your rights for failure to act in a timely fashion. Courts consider the level of diligence you exercised in protecting your trademark as one element considered when determining whether you are precluded from prevailing in an infringement lawsuit.

Economic Losses and Damages

Failing to adequately police your trademark can result in a loss of business income, as consumers become less able to distinguish your products from those of your competitors. Failure to actively promote and protect your trademark can also result in an inability to secure damages in trademark enforcement lawsuits based on dilution -- using a similar trademark on different products that diminishes the distinctive quality of the mark. To secure damages in a dilution suit, the trademark holder must demonstrate their mark was famous by showing how the mark was extensively used and advertised.

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Breach of Trademark Effects


Related articles

How to Trademark an Abandoned Trademark

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.

Can I Trademark Before I Sell the Product?

Since the federal trademark registration process takes several months, it makes sense to apply for trademark registration as soon as you design your mark while in the initial stages of product development. Your company can file a federal trademark registration application before you sell any products. You can also potentially secure common law trademark rights in your name, logo or slogan through actual use in the marketplace, such as pre-sale marketing. Under common law, a company automatically secures trademark rights once the original mark is used in association with its goods or services offered in the marketplace.

How to Trademark a Product Before It Exists

The only way to establish trademark rights is to actually use the trademark in commerce. If your product is not ready for the marketplace, you do not have any trademark rights related to the product. However, if you are within 18 months of marketing your product, you can file an "intent-to-use application" with the U.S. Patent and Trademark Office to establish yourself as the first to use the trademark.

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