Can I trademark a dead trademark? - Miller IP

Can I trademark a dead trademark?

Trademark law allows for the registration and protection of trademarks that are currently in use or intended to be used in commerce. However, there are instances where a previously registered trademark, known as a "dead" trademark, can be revived and re-registered. In this article, we will discuss the process of trademark revival and whether it is possible to trademark a dead trademark.

A dead trademark is a trademark that has been abandoned by its owner, either voluntarily or due to failure to maintain the trademark registration. Once a trademark is considered dead, it no longer has any legal protection, and anyone can use the trademark without infringing on any trademark rights.

To revive a dead trademark, the trademark owner must file a petition to revive the trademark with the United States Patent and Trademark Office (USPTO). The petition must demonstrate that the trademark owner has a valid reason for the trademark's revival and that the trademark is still being used in commerce.

The USPTO will evaluate the petition and determine whether the trademark should be revived. Factors considered by the USPTO may include the length of time the trademark has been dead, the reasons for its abandonment, and any potential confusion that may arise from the revived trademark.

Assuming the USPTO approves the petition, the trademark owner will need to re-register the trademark and maintain the registration in the same way they would with a new trademark application. This includes regularly submitting renewal applications and using the trademark in commerce to maintain its legal protection.

While it is possible to revive a dead trademark, there are limitations on the types of trademarks that can be revived. For example, if a trademark has been abandoned for more than three years, it may be difficult to revive due to potential confusion with other trademarks that have been registered during that time.

It is possible to revive a dead trademark, but the process can be complex and may not always result in a successful revival. If you are considering reviving a dead trademark, it is important to consult with a trademark attorney who can guide you through the process and help you determine whether it is a viable option for your business.

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