So what’s the deal…Can I use a dead, canceled, or abandoned trademark?

Like everything else in law, it depends!

First things first.

Conduct a search of the US Patent and Trademark Office’s database before you start the trademark application process. You will see that all of the trademarks in the database are marked as either LIVE or DEAD.

A live trademark is one that is active and under prosecution by the USPTO.

A trademark that is either registered or pending registration will be marked as LIVE. Use caution (and consult with a trademark lawyer) before attempting to register a trademark that is identical or similar to a LIVE trademark.

A dead trademark will not be used in evaluating pending trademarks.

A DEAD trademark means that the trademark has been abandoned or canceled for one reason or another. Technically speaking, a dead trademark is available for use and registration by somebody else.

However, just because a trademark is dead does not mean you are automatically guaranteed success if you try to register it.

Rather, a dead trademark can provide valuable insight into the fate of your trademark. Seeing a dead trademark should raise some flags and prompt you to figure out why this poor trademark was abandoned or canceled as it may be best to avoid this specific trademark altogether. Just because you can, doesn’t mean you should!

Just because it is dead does not mean it’s available.

You’ll be able to find the dirty details of a trademark’s history in the TSDR database. Analyzing the history of a DEAD trademark will give you helpful insights into the possible fate of your trademark if you decide to apply for registration.

During the application process, the USPTO compares your trademark to their full database of pending and current trademarks to see if there is a likelihood of confusion. The USPTO will issue an Office Action if it believes there is a likelihood of confusion. This means that the USPTO considers your trademark to be confusingly similar to an existing or pending trademark. The USPTO will not consider the dead/canceled applications in this analysis.

A trademark often becomes abandoned when the USPTO issues an office action that the applicant cannot or does not overcome. So while this trademark may be available, this also means your trademark would likely be confused with an existing/pending one and could encounter the same dreaded office action fate.

It is always best to work with an attorney if you receive an office action letter or need assistance with your trademark. Contact Denver trademark lawyer Aiden Durham today to get started.