How Does a Trademark Get Abandoned?

A trademark is something that distinguishes your product from any other on the market. It can be a name, a tagline, a logo design, or even a new phrase that you came up with. Trademarks must be registered with the United States Patent and Trademark Office. Registering your trademark shows that you intend to use it. Unlike a patent, a trademark must be continually renewed to prove that you are using it and intend to continue doing so.

If someone’s trademark is no longer being used in any capacity, it may be a case of trademark abandonment. Let’s say that you have been selling ice cream for years and wanted to trademark the flavor Fudge and Raisins. Unfortunately, another company in California has the name trademarked, so you’ve been using another name for your flavor. When you go to check in on the other company’s Fudge and Raisins, you find that their flavor has been discontinued. Does that mean that you can start using the trademark for your ice cream company?

Proving trademark abandonment is not extremely complicated, but it does take time. If a trademark has not been used for three years or more, you have a legal starting point. Two things must be proven: that the trademark has not been used for at least that length of time, and that the holder has no intent to use it again.

In the case of our ice cream seller, they would first have to make sure that Fudge and Raisins had been off the market for three years. This means that it was not only discontinued but that there was no back stock still being sold in stores and it didn’t appear on their website. At that point, you could challenge the company to cancel their trademark registration. If they had any evidence that they were planning to use the flavor again – such as if they have internally been working on a new recipe with the same name – then you’re out of luck. If you can prove that they have not used the name for three years and they are not planning to use it again – then Fudge and Raisins is yours at last.

These kinds of cases are not frequent – most companies just decide to call their product by a different name. However, if someone else has been wasting what could be a potential goldmine for you, why not try to take it back? This only applies to trademarks – not to patents. These cases are fairly straightforward when they do happen. In today’s online world, it is easy to see when a trademark is being put to use.

If you are interested in trademark abandonment, or have been accused of it yourself, contact Hayoon Kane Law Firm. We are legal partners dedicated to protecting your business!

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Hayoon Kane Law Firm

I am committed to helping business owners such as yourself understand the intricacies of the law, so you can concentrate on growing your company.

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