Trademarking allows you to protect your most valuable brand assets, ensuring customers associate them with you and you alone. From Tiffany’s trademark blue to the Golden Arches, no matter your industry you need to leave a big brand impression.
So when businesses have worked so hard to build a powerful brand, what does trademark abandonment mean? Can you reclaim an abandoned trademark — and what happens if someone registers the trademark you abandoned?
Let’s explore the trademark abandonment definition and discover what you can do to protect your brand.
What Does Trademark Abandonment Mean?
Trademark abandonment happens when a trademark owner loses the right to a trademarked asset. This occurs when a company stops using its trademark in any trading capacity for a period of three years, alongside any absence of intention to use the trademark in the future.
Trademark abandonment usually happens deliberately, but owners need to understand how to maintain their trademarks to retain their trademark rights. Trademarks can’t be taken for granted — it’s a use it or lose it world.
Key Causes of Trademark Abandonment
Companies typically lose their trademarks in three ways.
Non-Use: The first is simple non-use — they stop selling their product and shelve the trademark. One of the criteria for trademarking in the United States is “use in commerce”, so if you’re no longer using the trademarked asset to market your goods or services, eventually you’ll lose the exclusive right to claim that name, logo or tagline as your own.
Dilution: Trademark dilution takes place when excessive use of your trademarked assets dilute — or water down — how your trademark is associated with your brand. This can happen through sloppy licensing deals legally permitting usage of your trademark, or if similar trademarks are granted to non-competing brands. You can protect your trademark by arguing that other brands are diluting it — but if you fail to do so you may lose rights over your mark.
Genericide: Genericide happens when your mark becomes the generic name for goods or services in your class, such as Kleenex or Band-Aid. The USPTO prevents brands from using generic terms in trademarks, and it works the other way around too: if your trademark becomes generic, you may lose the right to use it exclusively.
Can a Trademark Be Reinstated After Abandonment?
Can you reclaim an abandoned trademark? It’s possible, but once that trademark slips away, getting it back is an uphill battle.
You’ll need to convince a court you never really abandoned the mark by demonstrating either continued usage of the mark or the clear intention to return to the market. Maybe you were planning a comeback, or supply issues kept you off the market but after three years of no activity, that’s a tough sell. You will require substantial evidence to demonstrate to the USPTO that your trademark rights remain active.
Abandoned trademarks are also, of course, up for grabs to anyone who wants to trademark them themselves. While there is no process for taking over an abandoned trademark, you can start a new application for an abandoned trademark and, if you fulfil the criteria, the mark will become your own. Whether you’re seeking to control another brand’s abandoned trademark or revive your own trademark, this is one route you can pursue.
How to Avoid Trademark Abandonment
Keeping your trademark alive requires constant attention. Firstly, you must maintain the trademark as in use in commerce, so keep your brand alive with a website, marketing campaigns and a social media presence.
Secondly, monitor potential infringement on your trademark. Utilize the trademark period of opposition to challenge any mark that may dilute your brand, and build a brand style guide that clarifies the usage of your trademarked assets and avoids genericide.
For example, online messenger Skype’s style guide actively advises against using Skype as a verb: according to Microsoft, you should never skype someone, but only make a call using Skype, or make a Skype call. This ensures that Microsoft’s trademarked name Skype doesn’t become a generic term for making an online call. Since 2020, Zoom is often used as such a term — something the trademark layers at Zoom are surely working to avoid.
Finally, keep your trademark paperwork up to date and meet the USPTO’s deadlines for trademark maintenance.
Wrapping Up
Your brand assets, from your name to your logo, are important parts of any marketing strategy. Your customers’ trust and recognition are hard won — so don’t let it slip through your fingers with trademark abandonment.
Ready to begin building that brand? Ensure your best name ideas are unique and ready to be yours alone with our expert Trademark Research. Our experts can guide you through the trademark process for a robust brand, and a long-term asset.
