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.

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.

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.

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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 If the owner sells the mark only, the mark will no longer represent the product it was intended for.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.

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Should Artists Trademark?

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Registered vs. Unregistered Trademark

When you register your trademark with the U.S. Patent and Trademark Office, you get automatic legal protection against the use of your mark without your permission, an act known as "infringement." However, a trademark doesn't have to be registered with the USPTO to qualify for legal protection. If you're the owner of an original, unregistered trademark, you might be able to take legal action against an infringer. If you win an infringement case, you're entitled to money damages from the other party.

What Are the Four Parts to Obtaining a Trademark?

Your trademark tells your customers that your products come from you. It distinguishes your goods and services from those of others. You can select a word, phrase, symbol, design or any combination of these elements to serve as your trademark. The strongest trademark is a fanciful, made-up word or image that is not confusingly similar to another party's goods. There are four basic steps to obtaining a trademark.

Trademark Owner's Responsibilities

Holding an official trademark registered with the federal government gives you the right to exclusively use your mark, but it does not come without responsibility. If you have a trademark registered by the U.S. Patent and Trademark Office, there are ongoing requirements to meet in order to maintain and enforce its exclusive use.

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