Are abandoned trademarks public domain?
Asked by: Florine Schaefer DDS | Last update: February 19, 2026Score: 4.3/5 (26 votes)
Yes, an officially abandoned trademark effectively returns to the public domain (or more accurately, becomes available for public use), meaning its exclusive rights are lost, and the first person or company to use it in commerce can claim it as their own, but it's crucial to verify actual abandonment and potential "common law" rights before using it to avoid legal issues.
Can you use a trademark that has been abandoned?
If the mark has been abandoned for three to five years, odds are, you're in the clear. That's the span that the USPTO requires trademarks to be maintained, meaning if the proper paperwork hasn't been filed, it's potentially up for grabs.
What does it mean when a trademark is abandoned?
Abandonment of a trademark occurs when the owner of the trademark deliberately ceases to use the trademark for three or more years, with no intention of using the trademark again in the future.
How to take over an abandoned trademark?
Yes, in many cases, an abandoned trademark application can be revived by filing a Petition to Revive if the abandonment was unintentional. The petition must explain the reason for missing the deadline and include the appropriate filing fee.
Are unregistered trademarks protected?
Under US trademark law, unregistered trademarks are protected under common law, although they have less protection than registered trademarks. In contrast to federal registration, common law trademarks are usually enforceable only within the geographic region or locale where the trademark owner is using it in business.
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How do you enforce an unregistered trademark?
Enforcement of Unregistered Trademarks: To enforce their unregistered trademarks, owners must rely on state courts to bring infringement claims. This process can be more complex and costly than enforcing a federally registered trademark, but it is a viable option.
Can someone steal my logo if it's not trademarked?
If your logo is registered with the USPTO (U.S. Patent and Trademark Office), you have a strong legal foundation to stop others from using it. But even without registration, you may still have common law rights if you've been using the logo consistently in commerce.
How long do I have to revive an abandoned trademark?
You can file a petition to "revive" an abandoned application if your delay in responding to the office action was unintentional. You must file the petition no later than two (2) months from the mailing date of the Notice of Abandonment.
How long can a trademark last if it is not abandoned by the owner?
The length of a federal trademark registration term is 10 years, but trademarks can potentially last indefinitely. Unlike patents and copyrights, trademarks do not expire after a set period of time. Trademarks can persist so long as the owner fulfills the following requirements: Continue to use the trademark.
What happens if I make a trademark and never use it?
Under both federal law and in New York courts, a trademark is presumed abandoned after three consecutive years of non-use. That signals the mark no longer identifies your business. If you stop using it, others can step in, register it, and use it. Your legal protection disappears.
What are the three types of trademarks?
Federal Mark, State Mark, and Common Law Mark
The U.S. recognizes three different legal forms of a mark. Federal marks are marks registered with the United States Patent and Trademark Office (“USPTO”). USPTO marks protect specific goods or services throughout the entire United States and its territories.
Can I take over an abandoned patent?
If the inventor confirms that they do not intend to pursue their patent, then it is likely considered abandoned and you can attempt to use it. However, doing so without permission or proper documentation may still present a risk of infringement suits, so it's important to proceed with caution.
Can I use TM without registering?
Businesses may use the ™ symbol (note that service businesses use an SM symbol) to indicate that they consider a mark to be their trademark, even if it is not registered. This symbol provides notice to others of your claim of exclusive rights to the trademark.
Can I buy an abandoned trademark?
Generally, a trademark needs to have been used within the last three years in order to stay protected. If the mark has been abandoned, then it becomes available to others. At this point it would be a good idea to file an intent to use application with the United States Patent and Trademark Office.
What is an example of an abandoned trademark?
As a result, the trademark may be considered abandoned. Example 2: A popular brand of adhesive bandages becomes known as "Band-Aid" to the public, and the owner fails to take action to protect the trademark. Over time, "Band-Aid" may be deemed a generic term, leading to abandonment (hypothetical example).
What is the difference between abandonment and withdrawal?
Think of it this way: withdrawing your application is like resigning from a job on your own terms, whereas having your application abandoned or refused is like being fired. Clearly, resigning is a better option. This keeps the end of your application process clean and intentional.
What to do when a trademark is abandoned?
In limited situations, you may be entitled to reinstatement without a fee if you can provide evidence that your application was abandoned due to a USPTO error. File a Request for Reinstatement form. File your request for reinstatement no later than two months after the issue date of your Notice of Abandonment.
What is stronger, TM or R?
Legal Protection: The ® symbol provides stronger legal protection than ™. It gives you the right to sue for trademark infringement if someone else tries to use your registered trademark without permission.
Is it better to trademark or LLC?
An LLC (Limited Liability Company) creates a legal business structure that separates personal and business assets for liability protection, while a trademark protects your brand identity (name, logo, slogan) to prevent consumer confusion, with an LLC being the foundation and a trademark securing your brand's unique identifiers, serving different but complementary roles in business formation and protection. You usually form the LLC first as the legal entity and then register a trademark to protect your specific brand name and logo used within that business.
How to claim an abandoned trademark?
File a Trademark Application at the USPTO.
After assessing the viability of the abandoned trademark, the next step is to file a trademark application. The application must be filed at the United States Patent and Trademark Office (USPTO) to receive a federal registration in the US.
Can you register a trademark if it is abandoned?
If you determine that a trademark is abandoned, you can file an application to register it. However, you should be aware that the owner of the abandoned trademark may still challenge your application. If the owner challenges your application, you may need to go to court to defend your right to register the trademark.
How much does a petition to revive an abandoned trademark application cost?
Petitions and Letters of Protest: The USPTO has increased fees for petitions, including the petition to revive an abandoned application, from $150 to $250. Additionally, the fee for filing a letter of protest, used to challenge pending applications, has tripled from $50 to $150.
What is the 3 month rule for copyright?
The "copyright 3 month rule" refers to a key deadline for U.S. copyright registration: you must register your work within three months of its first publication (or before infringement begins) to be eligible to claim statutory damages and attorney's fees in a copyright infringement lawsuit, which can be crucial for remedies beyond just an injunction. Failing to meet this deadline means you generally can only sue for actual damages (harder to prove) if infringement occurs, but registration is still vital for other benefits and to sue at all, notes Donahue Fitzgerald LLP and Cotman IP.
Is it better to get a TM or a copyright?
Neither trademark (TM) nor copyright is inherently "better"; they protect different things, so the best choice depends on what you're shielding: trademarks protect brand identifiers (logos, names, slogans) for infinite duration with use, preventing consumer confusion, while copyrights protect original creative works (books, art, music, code) for life plus 70 years, preventing unauthorized copying. Often, you need both, like a trademark for your company logo and copyright for the artwork within that logo, to fully protect your brand and creative assets.
Can I trademark a logo I made on Canva?
Creating logos you can register as a trademark
However, you can't use stock content (e.g. photos and graphics) as we only give you a non-exclusive license to this. Other Canva users are free to use the same content which means that using stock content for your logos isn't suitable for use in a trademark.