Can I use an abandoned trademark?

Question

I'm interested in using an abandoned trademark in art that I sell. The trademark was abandoned in Octobed 2016 and is currently in the process of being registered, but it is still technically abandoned. The person who previously owned the trademark contacted me and threatened to take legal action against me. Since her trademark is abandoned, I can technically use it, right?

Only interested in using the abandoned trademark, not registering it. Thanks!

Answer 1

I'm going to go ahead and give you the benefit of the doubt by assuming you meant October 2015. It is possible to claim abandonment as a defense to trademark infringement, but it is going to be very difficult to prove. There is no magical date on which a mark is automatically deemed abandoned.



Maybe you meant that an earlier federal trademark application was abandoned? That means nothing. The other person's rights are still superior to yours if they were using the mark in commerce before you were.

Answer 2

You stated the trademark was abandoned in October 2016. The trademark can't be abandoned until October 2016, and this is November 2015. Therefore the trademark is still in force and hasn't been abandoned. Her trademark is hers and she will take legal action against you were you to use the trademark before the trademark is, in fact, abandoned in October 2016.

Answer 3

As I tried to explain to you a couple of days ago, US trademarks are not required to be registered in order to be enforced. The fact that an application failed, and was thus "abandoned" has no effect upon the trademark owners' rights to sue you or anyone else attempting to use a "confusingly similar brand" in an overlapping market.



For a trademark to become abandoned, the owners must have stopped using it for many years, depending upon circumstances (how strong the brand was, how big the market was, etc). As long as someone continues to "use" the brand on goods or services in commerce, it will never become legally abandoned.



As squidward mentioned, the fact they accused you indicates they're still using it and may be about to school you in respecting their right of priority. Your attorneys will advise you of your legal options under the circumstances, when you are served with a restraining order.

Answer 4

How can it be abandoned in the future? It's currently November of 2015...

Answer 5

Is it for a time machine? Because October 2016 hasn't happened yet....

Answer 6

The fact that the owner is trying to take action to retain ownership is enough to show that it hasn't been abandoned.

Answer 7

If it is in the process of begin re-registered, then it IS NOT abandoned.