Can I use a trademark that has been abandoned?
Asked by: Nannie Adams | Last update: June 16, 2026Score: 4.5/5 (9 votes)
Yes, you generally can use an abandoned trademark, but you must first verify it's truly abandoned (no current use or intent to resume) and conduct a thorough trademark search to ensure no one else has picked it up, as an abandoned federal registration doesn't always mean no common law rights exist; you'd then file your own new application to claim it, potentially facing risks if the original owner or another party still has common law rights, so getting professional legal advice is crucial before proceeding.
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.
What does it mean when a trademark has been abandoned?
Under Section 45 of the Lanham Act, it states that a mark will be deemed abandoned if it has been discontinued with intent not to resume use. Intent not to resume may be inferred from circumstances.
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.
How Do I Claim an Abandoned Trademark?
Can I use an abandoned trademark name?
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 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.
Can you 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 take an abandoned trademark?
When a trademark is listed as abandoned during the registration process, it's possible to file a Petition to Revive. If your Office Action response, Statement of Use or Extension to File a Statement of Use isn't received in a timely manner, the revival petition is your main recourse.
Can you use abandoned trademarks?
When a trademark is “dead,” it means that anyone can use it without fear of legal repercussions from the original trademark owner. A Dead Trademark is generally available for anyone else to register, making it an opportunity to take ownership of an old, inactive logo or phrase.
What is the abandonment law for trademarks?
The Legal Standard for Abandonment
The key standard: if you haven't used your trademark in commerce for three consecutive years, and there's no clear plan to resume, the law presumes you abandoned it. Intent matters just as much as action.
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.
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.
How much does it cost to reinstate a trademark?
Fee to revive your abandoned application
If your application is abandoned for not timely responding to an office action, for example, you may file a petition to revive your application. The cost to file is $250.
Can I transfer ownership of a trademark?
Trademarks like any asset can be transferred from one owner to another. Such transfers can take place in the form of an assignment, merger, or amalgamation.
How do I reinstate an abandoned patent?
If your patent application was inadvertently abandoned, you can typically reinstate it by filing a petition to revive. The MPEP states: “In most cases, a petition to revive under 37 CFR 1.137 will be the appropriate remedy.” This petition should be filed promptly after receiving the notice of abandonment.
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 does status abandoned mean?
It means that the application has been abandoned because the applicant did not respond in time to an office action or other required correspondence from the trademark office. This status indicates that the application will not proceed to registration unless the abandonment is successfully petitioned to be reversed.
How long does it take for a trademark to be 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. When a trademark is abandoned, the trademark owner may no longer claim rights to the trademark.
How long do you have to revive an abandoned patent?
There is no time limit for filing a petition to revive an unintentionally abandoned application, subject to the possibility of intervening rights. However, the USPTO may require additional information if the petition is filed more than two years after the date of abandonment.
Can you claim a trademark without registering?
The statute has strict rules and regulations regarding trademark protection. However, the law does not require registration as a requirement to obtain legal rights. Indeed, federal law allows for a trademark infringement claim even without registration (15 U.S.C.
Can I sue if someone uses my trademark?
To support a trademark infringement claim in court, a plaintiff must prove that it owns a valid mark, that it has priority (its rights in the mark(s) are "senior" to the defendant's), and that the defendant's mark is likely to cause confusion in the minds of consumers about the source or sponsorship of the goods or ...
How to check if a trademark is still active?
Use our online Trademark Status and Document Retrieval (TSDR) system to check your status and view and download documents. In the search box, enter your application serial number or registration number and select the Status or Documents buttons.
Are abandoned trademarks public domain?
Once a trademark is abandoned, it enters the public domain and anyone can use and register the same or a similar trademark.
What is the meaning of TM abandoned?
Abandonment in trademark law in India means losing rights or status because of inaction, not using the mark or not following legal steps. Under the Act, abandonment isn't a loose idea but a specific result caused by certain actions or failures. It keeps the trademark registry active and clear of unused marks.