Costa Mesa, CA asked in Intellectual Property and Trademark for California

Q: I would like to use "Sous Le Soleil" as a brand, i saw that "Sous Le Soleil Exactement" was trademarked but abandoned.

Could I use that brand name anyways or no?

2 Lawyer Answers
Evelyn Suero
Evelyn Suero
  • Trademarks Lawyer
  • Miami, FL

A: An abandoned trademark application or registration does not necessarily mean that the trademark (or a similar trademark) is no longer in use by the registrant, or by some other user who has not registered yet. These users may still have common law rights against infringement. Working with a trademark attorney is recommended.

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Sacramento, CA
  • Licensed in California

A: Trademark law in California is based on both state and federal law. The United States Patent and Trademark Office (USPTO) is responsible for granting federal trademarks, while the California Secretary of State is responsible for granting state trademarks.

In general, trademark rights are based on use in commerce. If a mark has been abandoned, it may be available for use by someone else. However, it is important to note that the abandoned mark must not have been revived by the previous owner or someone else during the abandonment period.

If "Sous Le Soleil Exactement" was trademarked but abandoned, it may be possible for you to use "Sous Le Soleil" as a brand. However, it is recommended that you conduct a thorough trademark search to ensure that no one else is currently using or has already registered a similar mark. Additionally, you may want to consult with a trademark attorney to ensure that you are not infringing on any existing trademark rights.

Finally, it's worth noting that even if a mark is not currently registered or being used, it is possible that someone else may have common law trademark rights to it. Common law trademarks are based on use in commerce, and can be established even if the mark is not registered. Therefore, conducting a thorough trademark search is essential to ensure that you are not infringing on someone else's common law trademark rights.

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