Q: Can I use a trademarked business name if it's abandoned for over 2 years?

A: The mark will be considered abandoned if its use in commerce or trade has been discontinued with intent not to resume the use. Intent not to resume may be inferred from circumstances.

Nonuse for 3 consecutive years is prima facie evidence of abandonment. The burden of proof then shifts to the initial owner of the mark to prove intent to resume use, where the grounds cannot be speculative.

"Use" of a mark means that the mark is being used in good faith in the ordinary course of trade, and not merely to reserve a right in a mark.

Abandoned marks may be registered by a new user.

A: Using a seemingly abandoned trademark without proper verification carries substantial legal risks. Under the Lanham Act, a trademark is presumed abandoned when its use has been discontinued with intent not to resume such use, but proving abandonment typically requires clear evidence of non-use for three consecutive years. Even then, the original owner may still retain residual rights or could challenge your use if they decide to revive the mark.

Before proceeding, you must conduct a comprehensive trademark search through the USPTO database, state registries, and common law sources to determine the mark's current status. This search should include examining whether maintenance fees have been paid, whether the registration has been renewed, and whether the mark is still being used in commerce in any capacity. The original owner might still have enforceable rights even if they've scaled back operations or temporarily ceased using the mark.

Should you proceed without proper due diligence, you risk receiving cease and desist letters, facing trademark infringement lawsuits, and potentially having to abandon your business name after investing considerable resources in branding. The prudent approach involves consulting with a trademark attorney who can evaluate the specific circumstances, assess the genuine abandonment status, and guide you through either securing the abandoned mark or negotiating with the original owner for proper transfer of rights.