Q: If a trademark saying was active but has now been abandoned, can I step in and take over with a similar trademark?
Trademark taken by another person/company: Live by the seed of your plants
Our trademark: We live by the seeds of our plants
A: If the trademark was registered with the U.S. Trademark Office, but the status of the registration is listed as abandoned, that does not necessarily mean that the trademark is no longer in use in commerce and abandoned within that context. It may still be in use in commerce and protected under common law principles. Determining if a trademark is actually abandoned is fact-driven and can be complex and complicated. Accordingly, you should have an experienced trademark attorney explore fully explore the issue and provide you with an opinion of abandonment.
1 user found this answer helpful
If you want my longer explanation to this common question, see my blog post: https://klemalaw.com/blog/2017/09/09/registering-abandoned-trademarks/
I too agree that you should probably get a clearance opinion from a trademark lawyer if you want a more reassuring answer. It will involve exploring the abandoned mark, and possibly looking for others with common law trademark rights. Trademark rights exist through use!
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