Q: What happened if I am using a dead trademark? Can the previous trademark owner claim any right to a dead trademark?

A: The rights to any particular trademark do not actually arise from registration, but from actual use of the mark in commerce in conjunction with the sale or offering of goods and/or services. As such, it is possible to hold valid rights to a trademark without ever registering the mark, or without maintaining a registration. Registration is extremely important, as it enhances the rights that come with the trademark and allows the holder to enforce the mark, but it's not mandatory.

So, when people speak of a "dead" trademark, they are usually referring to a federal registration that has expired, was abandoned, never issued, etc. While the fact that the mark is "dead" may provide important clues as to the enforceability of the mark, it is not conclusive evidence. Many questions remain. Was the mark ever enforceable in the first place? Did they abandon the registration because they actually stopped using the mark, or are they still using it (or intend to do so in the future) and simply neglected to perform required maintenance on the registration?

In short, yes, in some cases the holder of a "dead" trademark may still maintain the rights to the mark. Caution is advised.

***Please note the important disclaimers set forth at the bottom of this page.***

A: If you want to analyze the issues yourself (rather than a lawyer), you can follow the steps I outline here: https://klemalaw.com/blog/2017/09/09/registering-abandoned-trademarks/