Q: Can I try to buy a trademark due to "602 - Abandoned-Failure To Respond Or Late Response"?
If it is possible how would one go about doing so?
A:
It sounds as though you are referring to a trademark application filed by somebody else, which then became abandoned when the applicant failed to respond to an office action. (Obviously I have to make a lot of assumptions here.)
The first problem with "buying" a trademark that has had an application abandoned for failure to respond would be to determine the nature of the objection to which they failed to respond. When there is a problem with a trademark application, the PTO issues an office action expressing the problem. The applicant then generally has six months to respond. The fact that this applicant failed to respond could mean a lot of things, but one of the most concerning would be that the office action raised an objection that they realized they couldn't overcome. In other words, it's possible that the examiner found a fatal flaw with the mark that would prevent you or anybody else from ever registering it. Without seeing the office action, of course, I have no way to know the real basis for it, though.
The next problem you have with buying a trademark is that you cannot simply buy the rights to the mark alone. The goal of a trademark is to represent the goodwill/reputation of the particular products and/or services that accompanied it. As such, in order to transfer a trademark from one party to another, you have to transfer the underlying essence of the associated goods and/or services that the prior party offered with the mark. Failure to do this makes the transfer an "assignment in gross," which is ineffective. So, for example, if you wanted to buy a trademark used with a brand of cookies, you would have to purchase the mark along with something like, say, the secret recipe for the cookies, or the bakery they were made in, etc. You have to buy something that provides some kind of continuity between what the prior person offered with the mark and what you would be offering.
***Please see the important disclaimers set forth at the bottom of this page.***
1 user found this answer helpful
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
