Q: Can I get a trademark on an item if it expires with the previous owner
If they forget to keep up on their retrademark can I slide in and own the design?
A: If a trademark expires and it is no longer registered with the USPTO a new application can be filed for the same mark and granted by the USPTO. Generally, the USPTO gives a 6 month grace period to a mark before marking it as abandoned by the owner.
A: If the owner of a federal trademark registration fails to submit the required paperwork/fees by a relevant deadline (including the sixth month grace period), it will go abandoned and will be considered a “dead” registration. If the registration is dead, you can file an application and obtain a federal trademark registration for that same mark. However, this does not necessarily mean you “own” the mark itself. The other party may still have superior “common law” rights based on commercial use of the mark. Whether they do, and the scope of those rights, will depend on the details of your specific case.
If a trademark expires or is abandoned by the previous owner, it may be available for someone else to register, provided that there are no prior conflicting trademarks or other legal obstacles. However, simply because a trademark has expired or been abandoned does not mean that you will automatically be able to obtain the trademark registration.
To obtain a trademark registration, you will still need to meet the requirements for trademark registration, including demonstrating that the mark is distinctive, not confusingly similar to other marks, and being used in commerce in connection with the goods or services for which you are seeking registration. You may also need to provide evidence of any prior use of the mark or show that the mark has acquired secondary meaning.
It is advisable to consult with a trademark attorney to discuss the specific facts of your situation and to determine the best course of action.
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