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DEAD Trademarks; Reuse?

Posted by . updated on 11/11/2009
Hello.  I want to reuse a Dead trademark that is not in use today; cancelled in 2002.  I have seen variations of the word for the same product, but no TM, nor is that the same company the origional TM was recorded under. Do I go about registering a new trademark?
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Answers (6)
 
JSonnabend
I'm not sure what you mean by "I have seen variations of the word for the same product, but no TM", but that statement worries me.  If you have seen variations of the word for the same product, your proposed mark might conflict, regardless of whether you could register it.

To move forward, start using the mark and then file.  Alternatively, you could file an Intent To Use application for the mark and begin use later.

- Jeff
 
TataBoxInhibitor
I would think before moving forward a bit of due diligence on the company is an order.  They may still have state rights to that mark, just not federal protection.

Regards,
 
JSonnabend
What do you mean "just not federal protection"?  Federal protection is available for unregistered rights via 43(a).

- Jeff
 
TataBoxInhibitor
I meant just not a federal registration.  Meaning just because there is no federal registration, does not mean other rights do not exist.  Investigate.
 
JSonnabend
I understand.  I just want to make sure readers of this thread understand this important point: trademark owners may have federally protectable rights in their trademarks even if they don't have a registration for their marks.  Such trademark owners can sue infringers in federal court without a registration in hand.

- Jeff
 
Dave_Zan
Quote from: txgal on 02-10-09 at 12:27 pm
I want to reuse a Dead trademark that is not in use today; cancelled in 2002.

http://www.uspto.gov/main/glossary/#d

Quote
a dead or abandoned status for a trademark application means that specific application is no longer under prosecution within the USPTO, and would not be used as a bar against your filing.

Also, regardless of the status of an application within the USPTO, the owner may still claim common law rights, i.e, the mark may still be in use in commerce.


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