Can I use an abandoned trademark?

Trademarks are unlike other forms of intellectual property. While patents and copyrights have defined boundaries and rigid time limits, trademarks are defined by use. The protections provided by a trademark extend as long as it is in use—potentially forever. And like any living thing, trademarks require care and maintenance to stay alive.

When a forgotten trademark stops being used, you can't simply use it as your own. Instead, you can fill the spot the expired trademark vacated with a brand new trademark that protects exactly what you need.

What does it mean when a trademark is abandoned?

To understand trademark abandonment, you need to understand trademark maintenance. Federal trademarks, for example, require periodic maintenance filings and fees. Those filings ensure that the trademark in use is still the one for which the owner originally filed protection. If your trademark changes, or if your product changes, it will be reflected in your filings to the federal government. A trademark that has outgrown or shifted from its original product has the potential to go abandoned.

Keep in mind that the trademark protects the relationship between your products and your customers, ensuring that your customers identify you as the source of those goods. Your trademark is literally the brand you put on your product that says you provided it. Think of the maintenance process as ensuring that the brand means the same thing to your customers. That relationship can change over time. The trademark and the product can grow together, can grow apart, and sometimes the trademark can die.

Keeping a registered trademark active requires both periodic maintenance filings and fees.. You can explicitly abandon the trademark by filing the right paperwork at the trademark office, which means intentionally putting down what was once your intellectual property. Alternatively, you can simply stop maintaining your trademark and let your trademark eventually fall into abandoned status.

How do I register an abandoned trademark?

You can't simply register an abandoned trademark. The trademark as it once existed is now dead. Where it once stood there is now an open space. In the past, the existing trademark prevented competitors from using the same kind of trademark. Those rights are now gone, creating an opportunity to create something similar, even related, but ultimately new. The relationship between your customers and your product will never be exactly the same as the relationship between the original mark holder and the original product. You cannot simply plug the old mark into your new business and expect the same result. The application you file will not be exactly the same.

What your new application can do is infringe the now dead trademark. No one can sue you for creating a new and similar trademark. Trademark infringement does not require the use of an identical mark—just one that's close enough to make customers think goods or services come from the same source.

Rather than re-animate its corpse, you are creating a new, living, breathing relationship with your customers. Protect that new relationship with a new trademark and fill the gap left by the dead trademark.

Trademark abandonment seems simple but really requires a sophisticated understanding of what trademarks are, what they protect, and where they end. Once you know that, it's easy to find a dead trademark and replace it with a new, living, and breathing trademark.