Can i register an expired trademark [Fact-Checked]

Last updated : Sept 3, 2022

Can I register a trademark that has expired?

Unlike patents and copyrights, trademarks do not expire after a set period of time. Trademarks will persist so long as the owner continues to use the trademark. Once the United States Patent and Trademark Office (USPTO), grants a registered trademark, the owner must continue to use the trademark in ordinary commerce.

What happens if my trademark expire?

Registering your trademark ensures you maintain exclusive rights to the mark. If you don't renew on time, you lose your rights. Your competitor would be within their full legal right to come in and claim ownership.

Can I buy a trademark that has lapsed?

If your trademark has fallen into 'dead' or 'abandoned' status unintentionally, you may petition the USPTO within 60 days of the Notice of Abandonment. After the 60 days have lapsed, or if you cannot document the abandonment was unintentional, you will need to file a trademark application with the USPTO.

How do I revive a lapsed trademark?

You will have to file a petition with the United States Patent and Trademark Office (USPTO) to revive the application within two months after the Notice of Abandonment has been posted and within six months after the USPTO electronically posts that the application has been abandoned.

How long does a trademark last if not used?

A federal trademark lasts 10 years from the date of registration, with 10-year renewal terms. Between the fifth and sixth year after the registration date, the registrant must file an affidavit to state that the mark is still in use.

Can you lose a trademark if you don't protect it?

If you don't enforce your trademark, you risk losing reputation, business, sales, customers, and more to the infringer. There's also a concept in trademark law called abandonment. Generally, if you don't use your mark for three years or more, it's considered abandoned.

How many times can you renew a trademark?

There's no limit to the number of times you can renew your trademark. You can and should continue to renew your registration every 10 years, as long as you're still using the trademark in commerce and in the ways described in your registration. With continued renewal, your trademark can conceivably last forever.

What is a dead trademark?

Once a trademark is registered, the registrant must maintain it by filing a declaration of continued use to keep the registration alive. A dead trademark registration is one whose registration was abandoned before it was issued, or for which no declaration of continued use was filed.

Can you lose a trademark?

You can lose a trademark in a variety of ways. You can lose a mark through abandonment. A mark will be considered abandoned if you stop using it for three consecutive years and you have no intent to resume its use. You can also lose a mark through improper licensing or improper assignment.

How long does it take to lose a trademark?

If after the 10th year you fail to renew your trademark, you stand to lose the federal protection that comes with a registered trademark. Similarly, it's considered presumptive abandonment if it is proven that you have not used your trademark in commerce for three straight years.

What are the three types of trademarks?

What you'll learn: Arbitrary and Fanciful Trademarks. Suggestive Trademarks. Descriptive Trademarks.

Can you trademark a name already in use but not trademarked?

1. Can You File for a Trademark That Exists? Updated November 12, 2020: If you're wondering, "can you trademark something that already exists," the simple answer is "no." Generally speaking, if somebody has used a trademark before you, you can't register the trademark for yourself.

What is the grace period for trademark renewal?

Grace periods There is a six-month grace period after each of the above USPTO deadlines. You can file during the grace period, but you'll have to pay an additional fee. If you don't file before the end of the grace period, your registration will be canceled.

Do you have to keep paying for a trademark?

Once you apply, you may need to pay additional fees, depending on your filing basis. After your trademark registers, you will need to pay maintenance fees periodically to keep your registration alive.

What happens to a trademark when the owner dies?

Trademarks cannot be assigned without the goodwill being specifically listed as being transferred with the mark. If the mark and related goodwill are not specifically assigned from the estate to beneficiary, the mark will not transfer and will die away.

How do you activate a dead trademark?

To claim the dead trademark you will need to complete an application with the USPTO. Provide your name and address, the name of the dead mark, a statement as to the goods and services that you wish to sell under the mark and a statement as to whether you have attempted to register the mark previously.

What invalidates a trademark?

Trademark Invalidation If the registration is less than five years old, the party challenging the trademark rights can rely on any ground that could have prevented registration initially. The likelihood of confusion and descriptiveness is the most common grounds asserted to invalidate trademark rights.

How long can you hold a trademark?

How long does a trademark last in the US? In the United States, a federal trademark can potentially last forever, but it has to be renewed every ten years. If the mark is still being used between the 5th and the 6th year after it was registered, then the registration can be renewed.

Is it expensive to trademark a name?

The basic cost to trademark a business name ranges from $225 to $600 per trademark class. This is the cost to submit your trademark application to the USPTO. The easiest and least expensive way to register your trademark is online, through the USPTO's Trademark Electronic Application System (TEAS).

What are some 5 examples of trademarks?

• Under Armour®
• Twitter®
• It's finger lickin' good! ®
• Just do it®
• America runs on Dunkin'®

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if the trademark registration has lapsed can i use it i'm going to answer that question in the next four minutes i'm angela langlotz trademark and copyright attorney i'm going to spend our time today answering a viewer question so jason bowden distal this is for you jason messaged me and he asked i have a question if a trademark is dead or cancelled and a company hasn't used it within 10 or more years is it safe to register it for my company okay so you go into the trademark database you see the mark that you want to file and you go to look at it and it's dead it's dead so you think wahoo i can use it well not so fast not so fast you might not be able to use it we need to do a little bit more digging now remember that trademark rights are acquired through use right not just registration you have to keep using the mark in order to maintain your trademark rights if you don't use the mark then your trademark rights can be lost irrespective of your registration status so we have to very carefully look at this so just because somebody had their trademark lapse okay and it can lapse for a number of reasons it could have been cancelled can be canceled for non-renewal it can be cancelled because somebody else filed a cancellation proceeding against that trademark it can be cancelled because somebody went in and said we are abandoning this trademark okay so we have to look at the record and see exactly what happened if it's cancelled because somebody else filed a cancellation proceeding then we probably want to investigate whether the people that filed the cancellation proceeding are still using the trademark that they were using when they filed the trademark cancellation proceeding because that mark that they they were using was probably the reason why they had the trademark registration in question canceled right we also have to look at this just because a mark is canceled that doesn't mean that you can still use it because a subsequent applicant may have come in between the time the trademark registration lapsed and the time that you looked at it and got all excited there may have been someone else come in and register a mark that now would be considered confusingly similar to the mark that you're proposing to use so the the bottom line is you really need to look at the record and consider all of the possibilities when you are looking at using any mark not just an abandoned mark but in general if somebody hasn't used a trademark for a number of years we usually say two if you haven't used the trademark and you don't have what we call excusable non-use then the trademark rights would lapse you may still have a trademark registration but somebody could come in and petition to cancel your mark for non-use so if you don't use your trademark the bottom line is you're likely to you to lose it either because you can't renew because you're no longer using the mark or because somebody else sees that you're no longer using it and files a cancellation proceeding so either of those things are possible and there's always the wild card of some intervening filing going on that may also affect your ability to use that trademark that's been canceled so jason i hope this helps you i'm going to tag you in this video so that you know that i answered your question if anyone else has questions you can drop them into the comments underneath the video i will answer them in a future live if you would like more trademark goodness i have a youtube channel you can just go to youtube and search trademark doctor you'll find me there you can also find me on facebook at facebook.com forward slash trademark doctor and online at trademarkdoctor.net

Thanks for your comment Jacquelyne Defalco, have a nice day.
- Colin Koch, Staff Member

attorney here going live as I do every weekday to discuss trademark issues yesterday somebody asked me that if I do a search through the uspto.gov website and I find a trademark that's expired is it fair game to use now that's an interesting question and one that comes up a lot and the answer is it has so many things in law maybe so expired trademarks can in some circumstances be revived and in addition to that just because the trademark has expired it means the registration has expired it may still very well be in use however and you're gonna have to do more than just a search of uspto.gov database in order to find that out now marks may expire for a number of reasons and one of the most common reasons for a trademark to expire is because the trademark owner doesn't file their maintenance documents so there are certain documents that need to be filed between years 5 & 6 and then after year 10 to be able to and then every 10 years thereafter to be able to maintain the trademark and in some cases either the attorney doesn't docket it or the trademark owner files himself and doesn't doesn't make sure that they put it in their calendar the registration that needs to be maintained on these certain dates or they may have not updated their address with the Patent and Trademark Office so the notice is mailed to them but then it doesn't arrive because they don't have a forwarding address or they didn't change their address or they forward to dip at the forwarding has expired there's a whole bunch of reasons why the notice that the maintenance documents need to be filed doesn't show up so what people need to do is they need to make sure that they filed what's called a declaration of use but sometimes that doesn't get filed they maced we'll be using the mark in commerce in exactly the same way they used it prior to the expiration of the registration it's just that the registration has expired so what happens then if they miss the deadline to file the maintenance documents there's a grace period after that during which time they can file the maintenance documents and maintain the trademark you just have to pay a fee and so if you see a mark that's expired it doesn't necessarily mean that it's expired they may still be within the grace period we don't know if they're still using the mark but have missed the deadline they still have all the common law rights that they used to have they just don't have a registration so what does that mean it means that it's possible for someone else to come in even after the grace period has expired it's possible that someone else may come in apply to register that mark or a mark that would otherwise infringe be granted a registration because their registration is no longer live in the USPTO database so of course the trademark examiner doesn't know that they're still using it because the only place that they look is the USPTO database so they could grant a registration to somebody else and then that registration could be cancelled when the superior rights holder that's the person that's been using it all along even though their registration has lapsed when the superior rights holder realizes oh hey wait someone else got a registration for for this mark that we've been using for twenty years just because we forgot to file the maintenance documents they may apply to cancel that registration because they have been using it longer and they actually have prior rights nationwide so when people don't file their maintenance documents it kind of it kind of messes up everything especially for the former registrant who now may have to litigate over who has the better trademark rights with somebody who subsequently came in and filed and got a registration for that mark even though the mark was still being used so numoral the story is if you're going to adopt a mark that is expired make double-dog sure sure sure be sure sure that you have investigated whether or not that mark is still in use and if you are a registrant be sure to make a note of when those maintenance documents are due I'm Angela Liang Lots and I go live every weekday to talk about trademarks copyrights other intellectual property issues and you can find me online at trademark dr. net if you go to my facebook page at facebook.com forward slash trademark doctor and like my page you'll be notified every time I go live if you like this video please share it with others I'd give you permission and would be delighted for you to do so I'll see you tomorrow

Thanks Mellisa your participation is very much appreciated
- Colin Koch

About the author

Colin Koch

I've studied measure theory at Youngstown State University in Youngstown and I am an expert in modern history. I usually feel grateful. My previous job was marine surveyor I held this position for 2 years, I love talking about shopping and scuba diving. Huge fan of Carey Mulligan I practice table tennis and collect patches (also badges).