Trademark Abandonment

Posted Wednesday, May 14, 2008 by Jim Ruttler.

Trademark rights exist only when a given trademark is used on or in association with products and services in bona fide sales to consumers. This is true for common law unregistered marks as well as federally registered marks. This is intuitive with regards to unregistered marks, given that if a mark isn’t being used in commerce and there isn’t a registration for the mark, there really isn’t anything else that would support trademark rights. However, with registered marks, there is often the assumption that registration alone grants trademark rights without use of the trademark being required. Unfortunately, this assumption is not true as registration merely provides a presumption that a trademark is valid. This presumption can be rebutted and a trademark registration can be cancelled if the underlying trademark is not continuously used to sell the products or services listed in the registration. As a side note, it is critical to file the requisite affidavits for federally registered trademarks every 5 years with the trademark office. Failure to do so will result in cancellation of a federally registered mark and complete loss of the presumptions that flow therefrom.

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