Q: What are my options if a trademark has been established but had an abandonment notice Number 88416440.

A: Typically, you would do some additional research to determine if the mark you want is still in use, even though the registration application has been abandoned. In the U.S., trademark rights arise out of use of a mark in commerce and the registration simply puts others on notice that you are using the mark. In other words, a registration of a trademark is a PART of the analysis of who has rights to use the mark. There are cases where someone has successfully registered a mark, but someone else who was using it first still ended up successfully challenging that use and winning. For this particular mark, it seems they abandoned it because the trademark office found a registration for "GOODBYE PAIN" for the same exact product (topical pain creams), and was challenging the ability to register it. Identical trademarks can co-exist so long as the products are different enough that it's not likely to cause confusion that the same company is making the two different products (think Delta Faucets v. Delta Airlines). If you're planning on using "BYE BYE PAIN" for other products, you MAY be able to register it, but the close those products are to pain treatments, the more of an uphill climb you're gonna face. A trademark attorney can help you with this.

A: An abandonment notice typically occurs when a trademark registration applicant fails to file a required response with the USPTO. This does not mean that this trademark applicant has stopped using the trademark nor does it mean that another business owner is not using it. Work with a trademark attorney to assist you with the process and determining whether you are clear to use and register this trademark.