“Can I use a dead trademark ?” is a commonly asked question by entrepreneurs and business owners. They find a brand they like, do a trademark search on the USPTO site and find out that the mark is “dead”, and want to know if they can safely use that mark?
First things first – What’s a dead trademark?
A dead trademark is a mark that is no longer active on the USPTO register. This can happen because the owner did not respond to a trademark office action, did not renew their mark and pay USPTO maintenance fees or maybe filed a trademark intending on using the mark but never actually used the mark in commerce. Sometimes, the owner might continue using the mark in commerce even though the mark appears to be “dead” on the USPTO database.
Do you have to register a mark with the USPTO to use it in commerce?
The short answer to that question is no. You do not have to register a mark with the USPTO to be able to use a mark in commerce. Trademark rights in the U.S. are acquired by using the mark in commerce, and selling goods and services under the mark. As a matter of fact, the first owner to start using a mark in commerce gets trademark “common law” rights within a certain geographical area.
So if I don’t need to register a trademark, why should I register it with the USPTO?
A federal registration with the USPTO offers benefits that you will not get without the federal registration. As outlined in our trademark article, some of these benefits are protection against confusingly similar marks, ability to bring a trademark action in federal court, putting people on notice and deterring others from using your mark.
Can I register a dead trademark with the USPTO? Or start using it without registration?
As discussed above, a mark might show as “dead” on the USPTO register but the owner might still be using the mark in commerce. So before registering the dead mark, or starting to use it, make sure that the owner have truly abandoned the mark and are no longer using the mark in interstate commerce.
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