What does it mean if trademark is dead [Explained]

Last updated : Sept 26, 2022

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What does live or dead mean on 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.

What is a dead indicator?

A dead trademark is an indicator by the U.S. Patent and Trademark office that a trademark application or registration is no longer actively pending.

Can I use a trademark if it's dead?

A dead trademark is a trademark that was once registered or applied for and that the Patent and Trademark Office doesn't recognize anymore. Individuals and companies can register and use a dead trademark. When this happens, the original business can no longer use and seek protection for that trademark.

Can u use a dead trademark?

â€œA 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.â€ While you can register a dead mark, other potential issues may make it not worth the risk.

How do you get a dead trademark back?

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 you reactivate a dead trademark?

File your petition to revive no later than two months after the issue date of your Notice of Abandonment. If you didn't receive the Notice of Abandonment, file your petition within two months of learning of the abandonment and no later than six months after the abandonment date in TSDR.

How do I find a dead trademark?

DEAD trademarks, marks that no longer have an active registration or active application at the USPTO, can be searched at TESS: Trademark Electronic Search System (http://tess2.uspto.gov/). TESS is for searching DEAD and LIVE, pending and registered USPTO Trademarks and viewing Trademark images.

How long before a trademark is abandoned?

A trademark is abandoned when the owner stops using it for three years in a row without intending to use it again, according to 15 USC 1127. After three years of non-use, the owner must show tangible, solid evidence to counter a registration attempt by someone else.

Why would a trademark be Cancelled?

There are several legal grounds that exist to cancel a trademark registration, including priority, abandonment (by non-use of at least three consecutive years together with an intent not to resume use), and fraud. There are additional grounds as well, such as priority of use and genericness.

Can I revive a dead trademark?

If a trademark applicant unintentionally fails to respond to an Office Action or to a Notice of Allowance, there is a mechanism in place for that applicant to revive the trademark application. If this occurs a petition to revive the application must be filed with the United States Patent & Trademark Office ("USPTO").

Can you file for Cancelled trademark?

A petition for cancellation of a trademark registration may be filed at any time. However, a mark which has been registered for more than five years may only be cancelled on the grounds enumerated in Trademark Act Â§ 14.

How do you know if a trademark is live?

Anyone can search trademarks on the USPTO's Trademark Electronic Search System, or TESS for short. The status of each trademark filing on TESS will be identified as either LIVE or DEAD.

How do I revive a dead trademark?

How do I know if my trademark is approved?

It is fairly easy to check your trademark registration on the USPTO website, at http://tsdr.uspto.gov/. Enter your trademark serial or reference number on the Trademark Status and Document Retrieval (TDSR) page to receive the status of your pending and registered 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.

How long does a trademark last?

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.

How long does it take for trademark to be approved?

Usually, the process takes 12 to 18 months. Registering your trademark is a complex procedure that involves your application moving through various stages. Learning about each stage in the process will help you understand why getting a trademark takes as long as it does.

Why do trademarks get denied?

A mark will be refused as deceptively misdescriptive if (1) the mark misdescribes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services; and (2) the misrepresentation conveyed by the mark is plausible.

What happens after your trademark is approved?

After your trademark is approved for publication, your trademark is published in our weekly online Trademark Official Gazette. Your trademark hasn't yet registered. Publication begins a 30-day period during which any member of the public who thinks they'll be harmed by the registration of your trademark may oppose it.

What names Cannot be trademarked?

Proper names or likenesses without consent from the person.
Generic terms, phrases, or the like.
Government symbols or insignia.
Vulgar or disparaging words or phrases.
The likeness of a U.S. President, former or current.
Immoral, deceptive, or scandalous words or symbols.
Sounds or short motifs.

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Comment by Franklyn Markoff

like the good diligent responsible all up in your business watching entrepreneur that you are you're searching the uspto trademark database before deciding on a trademark for your business inevitably you find yourself staring at something like this what does that mean i'm about to tell you what it means why it's so important that you not disregard those dead trademarks and the exact steps to take when you see a dead trademark welcome to all up in your business if you're not subscribed yet hit that subscribe button and the bell so you'll be notified any time i post a new video so you don't miss out on any more hot trademark tips hi i'm aiden durham business and branding attorney with 180 locko in colorado and i have helped hundreds of businesses secure and protect their trademarks whether i'm preparing a trademark application for a client or breaking it down for my diy course brandish the trademark application process starts well before you hit that submit button on the trademark application it starts with a thorough clearance search i've done hundreds of trademark clearance searches and trust me it is the most important part of the entire process one part of the clearance search is searching the uspto's tess database where all the track records are housed and when you're doing it it's pretty likely that you'll run into at least one record of a trademark that says dead if you're not seeing any dead records when you're doing a trademark clearance search you may not be searching enough to so if that's you check out brandish where i show you the secret search techniques that us trademark lawyers use a dead trademark is one that's no longer under prosecution of the uspto meaning that it won't be used to bar or prevent your trademark registration the uspto won't take the dead trademark records into consideration when they're evaluating your application but just because a trademark is dead doesn't mean that you're totally in the clear to use it if you run across a trademark that's identical to yours are super similar but it's dead that doesn't automatically mean oh great this trademark's available for me since this one's no longer for live a trademark will become dead if it's abandoned or cancelled it means that either the applicant failed to meet a requirement maybe they didn't respond to an office action on time or their response wasn't accepted or maybe somebody filed an opposition and successfully opposed the trademark registration in either event whatever happened the trademark was never registered and it eventually became abandoned and thus was marked as dead or it could mean that the trademark was registered at some point but maybe it was cancelled by a third party or owner didn't file the renewal or maintenance documents the fact that a trademark is dead that in itself isn't really that important what's really important here is why it's dead what killed this trademark that's what you want to know that's where the real treasure is so put your indiana jones gear on because we're gonna do some treasure hunting look the trademark clearance search process is complicated heck the whole trademark process is complicated i've been through law school and i've been a trademark lawyer for like eight years now and it's still complicated that's why i created brandish so you don't have to go through law school check the link in the description to find out more alright back to our indiana jones treasure hunting the tsdr is the trademark status and document retrieval and it's where you can find all the dirty details about a trademark if you find a dead trademark that's identical or very similar to yours you'll want to know exactly why it's dead because whatever killed it could come after your trademark next let's use this dead meta booster trademark as an example clicking the record shows us that it was abandoned okay that's good to know but more importantly why was it abandoned open up the tsdr by clicking this button and you'll see that it was abandoned because the applicant failed to respond to an office action we definitely want to know more about that click this documents tab and pull up a copy of the office action and we can see that there was a likelihood of confusion with another registered trademark so if i try to enter a trademark for meta booster or something similar to it for same or related types of goods and services this tells me that there's a pretty good chance that i too would receive an office action citing a likelihood of confusion and probably won't get the trademark registration so even though a dead trademark won't directly impact your trademark application or your chances of registration you certainly cannot disregard them all together even if the uspto won't use those dead trademarks in evaluating your application they can still give you a really nice glimpse into the potential future of your application and your trademark the clearance search is the most important part of the trademark application and registration process and it's more than just a quick search and browse of the internet or the uspto database conducting a thorough clearance search which includes digging into any of those dead records it helps to keep you from wasting your hard-earned money on a trademark application that will never go through and avoid potential legal issues from arising later on down the line ready to start your trademark application i can teach you the exact process that i use with my clients and the precise steps that you can take right now that'll have you ready to hit that submit button on the application in just seven days head to this link or check the link in the description to learn more about brandish and diy your trademark application today securing your trademark is vital to the success and growth of your business and your business and your future self will thank you if you take the right steps to properly secure and protect your trademarks if you got value out of this video hit that thumbs up button and share this video so other people can learn the importance of trademark registration and why we shouldn't disregard any of those dead trademark records when we're doing a clearance search and be sure to check out some of my other videos for more legal tips and tricks for your business thank you so much for watching i'm aiden durham and i'll see you next time

Thanks for your comment Franklyn Markoff, have a nice day.
- Mabelle Matsuura, Staff Member

Comment by Marquerite

dead trademark everything you need to know what is a dead trademark a dead trademark is a trademark that was once registered or applied for and that the Patent and Trademark Office doesn't recognize anymore individuals and companies can register and use a dead trademark what is a dead trademark according to the USPTO a trademark is a word phrase symbol for design for a combination of words phrases symbols or designs that identifies and distinguishes the source of the goods of one party from those of others how do I build trademark rights you don't need to register a trademark in order to build trademark rights in the United States in fact you acquire these rights automatically when you use your marks in commerce and distinguish yourself from your competitors trademark rights don't have an expiration date as long as you keep using the mark and continue to pay the licensing fees you remain the rightful owner of the market however registering your mark in the USPTO database or United States Patent and Trademark database might be beneficial to your business when you register a mark you are protected against the registration of similar marks a trademark can die for multiple reasons including generousity which when a trademarked term is used to refer to a general item or service and the USPTO then kills the trademark another example is abandonment when a mark holder stops using a trademark with no intention of using it again in the future for licensing assignment failure to respond lapse of registration and express abandonment are also ways a trademark can die acquiring a dead trademark what are the risks even if a trademark is listed as dead the original company or another party can be using the mark and therefore owning the common law rights to it the likelihood that they will sue you is small but it is a risk you shouldn't have to take before launching you to business you need to perform a common law trademark search on the name you want to use for your company especially in the case of dead trademarks you have to make sure you can use the chosen mark to avoid infringement a waste of your time and monetary losses a lawyer can help you complete a common law trademark search and understand if your chosen trademark can be registered or not if you are the original owner of a dead trademark and you want to revive it file a new application or simply begin using it again to claim a dead trademark you need to file an application with the USPTO the same way you would do with the mark that's never been registered before the USPTO will check the application and approve it for denying this is a difficult matter to navigate if you need consultation about registering a dead trademark post your question in the up counsel marketplace

Thanks Marquerite your participation is very much appreciated
- Mabelle Matsuura

About the author

Mabelle Matsuura

I've studied ecology at Lake Forest College in Lake Forest and I am an expert in iranian history. I usually feel rushed. My previous job was military analyst I held this position for 11 years, I love talking about flower growing and kubb. Huge fan of Neil deGrasse Tyson I practice skateboarding and collect patches (also badges).

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