What is a dead trademark?

Within the world of trademarks there are two general types: 1) Live trademarks and 2) Dead trademarks. A live trademark refers to a trademark that “is actively registered or pending with the USPTO.” (1). Examples of live trademarks include Apple or Clorox, which are both registered trademarks that are currently in use.


In contrast, a dead trademark refers to a trademark “that was registered or applied for and is ‘dead’ or abandoned for several reasons.” (2). Some of the most common reasons that a trademark is deemed to be dead “include: 1. [f]ailure to pay a maintenance fee; 2. [n]on-use of the trademark in commerce; and 3. [f]ailure to respond to an outstanding Office Action.” (1).


Importantly, a dead trademark “does not mean it is available to use without registration.” (2). A dead trademark simply refers to the USPTO designation of the mark and does not reflect the rights that the owner/registrant may still have to the mark. For example, if the owner of the dead mark is still using the mark in commerce, the owner maintains “common law trademark rights.” (2). Therefore, it is recommended that before making use of a dead mark, that the person seeking to use that mark understands what rights the original owner has to the mark in question.


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