Q: If a trademark is cancelled does the owner still have rights to it
A: Possibly, trademark cancellation refers to the trademark's registration. The mark may have been cancelled as a result of an opposition proceeding by a competing trademark owner or the USPTO may have cancelled the mark for failure to maintain required filings, in which case this trademark owner may still be using the trademark or some other person may have started to use it. However, trademark availability also depends on the class/category. It is best to consult with a trademark attorney if you are unsure.
Kathryn Perales agrees with this answer
A: If the trademark is currently listed as 'cancelled' in the USPTO database, you should confirm whether this is due to a failure to respond to an Office Action or even an inter-partes proceeding, and if so, whether your application may encounter similar issues. However, if it was cancelled due to a failure to file maintenance documents, then the six month grace period could still be in effect. Notwithstanding all the above, common law rights may exist through continued use. So I would recommend running a search to make sure there aren't any potential risks, including similar third-party pending applications or registrations. Please call or email if you need further assistance.
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.
