Q: If my old high school stopped using our mascot and never trademarked it, is it fair game that I could now Trademark it?
So we used to be Red Devils when I was in high school over 20 years ago. After I graduated in 97, a year or so afterwards, the school dropped the red devils and consolidated with a neighboring school to become cougars. Could I now have the opportunity and permission to trademark the devil logo they no longer use?
A:
"Trademark" is a noun, not a verb. Trademarks may be REGISTERED (a verb).
Only a USER of a trademark may register it. The application to register a trademark requires submission of a specimen (proof) showing active use of the mark in commerce. The application may be granted only if there is not another active registration for it, or for any "confusingly similar" mark.
If you are referring to a trademark used by a school, it would be the school that applies to register it, not an individual.
A: If they never registered it, and you now want to use the mark, you can apply for your own trademark registration. If you are already using the mark, you can file a use application. If you are not yet using the mark, but you have a bona fide intent to do so, you can file an intent-to-use application. Whether your application will be successful depends on whether anyone else is using a similar mark for similar goods/services (sporting exhibitions? clothing?). You should discuss the details of your scenario with a qualified trademark attorney, who can usually give you a good idea of your chance of success.
A:
If the mascot was never trademarked and has been abandoned by the school, it may be possible for you to trademark it, provided it meets the criteria for trademark protection and is used in commerce. It would be wise to conduct a thorough search to ensure that no conflicting marks exist, and that the logo is not subject to other legal protections or community sensitivities. Engaging an attorney experienced in intellectual property law can guide you through the process of evaluating and potentially registering the trademark.
Sincerely,
James L. Arrasmith
Founder and Chief Legal Counsel of The Law Offices of James L. Arrasmith
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