Robert S. Broder, PLLC

                                  Attorneys At Law

 

123 South Street - Suite 103

Oyster Bay, NY 11771
Phone: 516.771.0349

 

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When a Trademark is No Longer Used
 

Once you register a trademark with the U.S. Patent and Trademark Office, you have to use the trademark to keep it. Merely registering it with the federal government does not protect the mark. It must be used in commerce. If you fail to use the mark or later go out of business, the mark may be considered abandoned.

Intent to Use
If a trademark hasn't been in use at the time of registration, you must file an "intent to use" statement, and show its use within a specific period of time. If you cannot prove use, the trademark will be deemed abandoned.

Determining Status
Several factors will most likely constitute abandonment:

  • If the trademark was already properly registered
  • Subsequent discontinued use of the trademark
  • The intent not to further use the mark

However, if the non-use is the result of economic circumstances, and the owner nevertheless intends to use the mark, an abandonment has not occurred, and the non-use is excusable. 

Anywhere in U.S.
Abandonment does not occur simply because of discontinued use in a particular geographic area of the United States, while maintaining use in other geographical areas.  A federal trademark technically has nationwide application, and so as long as it is being used somewhere in interstate commerce, a trademark most likely will not be considered abandoned.

Consequences
The consequences of an abandoned trademark are twofold:

  • The mark becomes available for use by the first person or business to properly register it and use it in commerce
  • Any business already using the mark may be permitted to use the mark

However, the U.S. Patent and Trademark Office will likely require proof of abandonment by the prior user, and give him/her a chance to show that the mark had not been abandoned.

Follow Procedures
To prevent abandonment of trademarks, the owner must follow all requirements of the federal trademark laws. Otherwise, the trademark may be considered abandoned, which can be fatal to a business.

 

Robert S. Broder, PLLC 123 South Street Oyster Bay, NY 11771
Phone: 516.771.0349 rsbroder@optonline.net

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