Phoenix, AZ asked in Trademark and Intellectual Property for Arizona

Q: Hi so since it’s abandoned, is Under The Sun available to trademark?

4 Lawyer Answers
Alan Harrison
Alan Harrison
Answered
  • Trademarks Lawyer
  • Milford, CT

A: Not enough information to answer. There may be other people using UNDER THE SUN for the goods or services that you would like to sell under the mark. The abandonment may not really mean that the owner stopped using the mark, just that they or their attorney forgot about the "8 and 15" filing deadline. Relying solely on a notice of abandonment as clearance to use the mark yourself is not a great idea.

Fritz-Howard Raymond Clapp agrees with this answer

Fritz-Howard Raymond Clapp
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Answered
  • Trademarks Lawyer
  • Beverly Hills, CA

A: There are several dead and cancelled registrations for the word mark UNDER THE SUN, and some have design elements. But there are also many active registrations for UNDER THE SUN in different categories of goods/services. You should consult a qualified trademark attorney to review your proposed usage and to advise whether it may be registered.

Felicia Altman
Felicia Altman
Answered
  • Trademarks Lawyer
  • Mercer Island, WA

A: Even if a trademark is abandoned does not mean that the mark is available for registration. In order to know if a mark is available start by conducting a quick search on the USPTO for similar registered marks in the same class of goods and services. A search can be complicated and it is recommended to consult with a trademark attorney to see if the mark is available. If no similar or exact marks are registered for your specific class of goods and services you should proceed with filing an application with the USPTO.

James L. Arrasmith
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Answered

A: Whether "Under The Sun" is available to trademark depends on several factors, including whether it's currently in use or has been abandoned in the context relevant to your business. Trademark availability is not just about whether a phrase is being used, but also whether it's being used in the same industry or market as you intend to use it.

To determine if "Under The Sun" is available for trademark in your specific context, you would typically start by conducting a comprehensive trademark search. This involves looking through the records of the United States Patent and Trademark Office (USPTO) and other relevant databases to see if the phrase or a similar phrase has been registered or applied for in a related category of goods or services.

If the phrase appears to be unused or abandoned in your particular field, you may have a chance to trademark it. However, it's important to note that just because a trademark is abandoned, doesn't automatically mean it's available. Other factors, such as common law usage and similarity to existing trademarks, can also impact availability. Consulting with a legal professional experienced in intellectual property rights can provide clarity and guide you through the process of applying for a trademark.

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