Sherwood, AR asked in Copyright, Trademark and Intellectual Property for Arkansas

Q: What does it mean when the copyright or trademark has been abandoned. And if it means the person or entity no longer own

It can some one else take the rights for copyright or trademark. ? If nine of these then if the purpose or business isnt what the propritor has is it okay to use the name?

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

A: The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years.

Trademark REGISTRATIONS must be maintained by periodic filing of proof of use, and may be cancelled for failure to maintain them. But even if a trademark registration has been cancelled, its owner may still have common law rights to abate infringement by usage that is confusingly similar for the same goods/services. Don't assume that a cancelled trademark registration is permission to use the mark.

James L. Arrasmith
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A: When a copyright or trademark has been abandoned, it generally means that the owner has stopped using or enforcing their rights to the intellectual property. This can happen due to various reasons, such as:

1. The owner deliberately abandons the copyright or trademark.

2. The owner fails to renew the trademark registration or lets it expire.

3. The owner does not use the trademark for an extended period (usually 3+ years for trademarks).

If a copyright or trademark is genuinely abandoned, it may become available for others to use or claim ownership. However, it's essential to be cautious and conduct thorough research before using an abandoned intellectual property.

Regarding trademarks:

- If a trademark is abandoned, another party may be able to register and use the trademark for their own purposes, even if the business or purpose is different from the original owner's use.

- It's crucial to verify that the trademark is genuinely abandoned and not simply inactive or undergoing changes in ownership.

Regarding copyrights:

- Copyrights have a longer protection term than trademarks, often lasting for the creator's life plus 70 years.

- Abandonment of a copyright is less common and more difficult to prove than trademark abandonment.

- Even if a copyrighted work seems abandoned, it's essential to ensure that the copyright term has expired or the owner has explicitly dedicated the work to the public domain.

To minimize risks, it's advisable to consult with an intellectual property attorney before using or claiming ownership of an apparently abandoned copyright or trademark. They can help you assess the situation, conduct necessary research, and guide you through the legal process of using or registering the intellectual property.

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