Are Dead Trademarks a Problem?

Many people often ask me, “Are dead trademarks a problem?” And the answer to this question is most likely no. Nine out of ten times, dead trademarks present no issue whatsoever for people or brands registering for new trademarks. 

What Is a Dead Trademark?

A dead trademark is a trademark that was once registered or applied for but then was abandoned or canceled by the Trademarks Office. So the Trademarks Office won't cite that trademark if you file a trademark application identical to that other dead trademark. For example, many old company logos and slogans that have been out of use for years are considered dead trademarks. But how to determine when a trademark has been abandoned is often tricky. Three years of non-use for a trademark is usually the benchmark the Trademark Office uses to determine if a trademark is dead. But this is not always an exact science. The Trademark Office will usually declare a trademark dead if it has not been used with no intent to be re-used. Determining whether or not a brand intends to use an abandoned trademark can be difficult. However, in most cases, a brand that has given up a trademark will not bring it back.

Can I Use a Dead Trademark? When Is It a Problem?

Your next question may be, “Can I use a dead trademark?” And the answer is, usually, “Yes.” The only risk is that the company that used to have that trademark is still in business; they're still using that brand and would have a common-law right to go after you if you decide to take that brand away from them. The likelihood of that is minimal. The idea is this: if they didn't bother to protect their brand from being canceled or abandoned, it's very unlikely that they will spend a lot more to oppose your trademark after the Trademarks Office approves it. Because again, the Trademarks Office will disregard the dead mark, and they will support your mark. They will publish it for the opposition, and the only way for the owner of the dead trademark to go after you would be through the opposition proceedings or in court. And it is improbable that somebody who didn't want to spend just a little bit of money to take their trademarks from the dead to live will go after you and spend ten times, 50, or 100 times more money, to accomplish pretty much the same task. But this can happen. However, it is always easier for that person to simply keep the trademark alive. So if a brand has been deemed dead, you can assume the previous owner will not fight for it.