If A Trademark Registration Has Expired, Can I Use It? | Dallas Trademark Lawyer Explains

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Yesterday someone asked me, “When I do a search through the USPTO and it either comes up that the trademark has expired, does that mean it's fair game?”

Maybe. "Expired" trademarks may also be revived under certain circumstances. Additionally, sometimes mark use has continued nationwide even though the trademark registration has expired. Trademark owners -- even of unregistered trademarks -- may still have common law trademark rights that are superior to that of a subsequent registrant.

Marks may expire for a number of reasons; one of the reasons is that the trademark owner doesn’t calendar the registration date so that they can file an Declaration of Use between years 5 and 6. If that Declaration is not filed, then the mark registration will expire, but that doesn’t mean that the mark is not still in use. The failure to file the Declaration just means that mark isn’t registered. Additionally, there is a 6-month grace period after the deadline to file the Declaration of Use. So just because the deadline to file the Declaration has come and gone doesn’t mean that the mark is dead. It means that the owner hasn’t timely filed the Declaration, but until the 6 month grace period is up, we don’t know whether or not the mark is dead.

If the owner is still using the mark, but missed the deadline to file the Declaration, the owner can apply to register the mark again, and claim use back to the date he or she originally began use of the mark. Can a junior user apply for the newly-abandoned mark and obtain a registration, even though the senior user’s mark has expired? Yes, but the the junior mark holder (now registrant) has only the presumption of better rights, which can be disproved. This requires the senior rights holder to file a Cancellation proceeding against the junior rights holder/trademark registrant. Hint: It’s always cheaper to maintain your marks than it is to rely on your common law rights; trademark litigation is expensive. If the senior user can show that he is still using the mark nationwide, and that he has better rights to the mark than the junior user who currently owns the registration, then he will prevail and his new application for registration will move forward.

It’s never a good idea to rely upon your common-law trademark rights (unless you like spending money on litigation). When your mark is not in the trademark database for others to find (and then avoid), you run the risk that the trademark examiner -- who only looks at the trademark database for competing marks -- will approve a mark similar or identical to yours, and you’ll have to spend time and money in litigation that could have been avoided had you just applied to register your trademark in the first place.

Find me online at https://trademarkdoctor.net. Leave questions or comments on my Facebook page at http://link.trademarkdoctor.net/FB and I'll answer them in a future LIVE video. “LIKE” my Facebook page to be notified every time I go LIVE.
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