Charleston, WV asked in Trademark for West Virginia

Q: Landshark is an abandoned trademark. Does that mean it can be used by the public?

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1 Lawyer Answer
Michael Gerity
Michael Gerity
  • Trademarks Lawyer
  • Phoenix, AZ

A: First off, the primary issue with regard to using any trademark is as to HOW you use it. If somebody has a trademark that they use in conjunction with their sales of baked goods, and somebody else wants to use the same or similar mark with the sale of sailboats, the two marks are likely to be allowed to coexist in the market despite their similarity. So, the existence of another trademark, whether abandoned or not, is generally only a problem if you plan to use the same or similar mark in a way that is likely to cause confusion in the market. A lot of factors go into the analysis of likelihood of confusion, of course.

As for an abandoned trademark registration, keep in mind that the previous holder of the mark might still be using it in commerce, and may have only neglected to renew their registration. If that is case, the other holder would still be a problem, but this is a very fact-specific analysis that would need to be done.

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