Q: So, if a trademark is listed as abandoned, how do you find out if the owner is still using it or if someone else has
begun using it in the same class? Is there a period of time after which a trademark is listed as abandoned or dead that it is ok to beging using it?
A:
Generally, trademark rights are based on use. Using a mark gives common law rights to the user of a trademark. Registering a trademark with the federal government will give extra rights in addition to the common law rights. Therefore, even if a trademark does not have an active registration, that trademark might have common law rights based on use. There is no clear answer to the question – a trademark search is required.
This answer includes generalizations and there are many caveats. This answer does not form an attorney client relationship.
A: Well, that can all be established by having a thorough TM search conducted, although whether the mark is still in use could be more difficult to ascertain. Hence, the possible existence of common law rights. Typically, 'abandoned' means just that for federally-registered marks, but please note the 6 mos. grace period for maintenance filings, such as Sec. 8 Affidavits and renewals. Feel free to call or email if you have any further questions.
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