You have a name in mind that perfectly reflects your brand, and even the domain name is available. The obvious next step is a trademark lookup. Do not scrap your entire brand identity or decide to ignore the listing if the name is already there. Check the ‘Status’ column first. A trademark can have one of the following two primary states:
- Live
- Dead
Many founders assume that if it is dead, then it is available for the taking. However, the USPTO database is a record of federal registration. On the other hand, trademark rights are created through actual use in commerce, not just by filing paperwork. It is important to understand the difference between Live and Dead trademarks before you make expensive legal blunders.
How to Find the Status
The USPTO cloud-based Trademark Search system allows you to search using keywords. You can also use an Advanced Search with field tags such as CM: for combined word marks.
Each result has a LIVE or DEAD label. However, this is not the complete story. Click on the Serial Number or the TSDR button next to the result. This takes you into the Trademark Status and Document Retrieval (TSDR) system, where the raw data and original filing documents are stored. Look for the following two tabs:
The Status Tab
This tab gives you the exact status of the mark in its lifecycle. The status can be:
- Under Examination
- Published for Opposition
- Notice of Allowance
The Documents Tab
This tab shows every letter exchanged between the owner and the USPTO. If the mark is dead, these documents answer questions like:
- Did the owner simply give up?
- Did they lose a legal battle?
You are also likely to face that battle if you consider the same name.
Never make a branding decision based solely on the “Live/Dead” label in a search result.
Understanding “Live” Status
The LIVE status means the mark is in the pipeline, meaning it is an active claim. The mark can have one of the following Common Status Descriptors (CSD):
Pending
The USPTO is currently reviewing the application to see if it conflicts with others.
Published for Opposition
After a USPTO attorney reviews an application and finds no issues, they publish it in the Official Gazette. Anyone can step forward within 30 days and argue that the mark shouldn’t be registered.
Registered
A registered mark grants the owner nationwide rights and the ability to use the ® symbol.
Understanding “Dead” Status
The DEAD label does not mean it is available. Pay attention to why it is dead to determine if it is a legal trap or a safe harbor. Look at the Status field in the TSDR to find the cause of death. A trademark dies for one of the following two reasons.
Abandoned: The application was started but never finished.
Canceled or Expired: The mark was once fully registered but has since been removed from the active list.
Check the Prosecution History tab to learn the backstory.
Did they go out of business?
Were they forced out?
The “Zombie” Trademark
If a business is using a name to sell products, they own the rights to that name in the geographic area where they operate, even if they never filed a single piece of paperwork with the USPTO. It’s a zombie trademark that is dead at the federal level but still active in the real world. You will commit trademark infringement by using that trademark.
Can You Resurrect a Dead Trademark?
When You Are the Original Owner
You can file a Petition to Revive if your trademark was labeled dead because you missed a deadline. You have only two months from the date the USPTO issued the “Notice of Abandonment.”
When You Want to Claim Someone Else’s Dead Mark
You must file a fresh application as if the name never existed. However, keep in mind that the previous owner could still oppose your new application if they are still using the name. Even if the USPTO approves your application, the original owner’s Common Law rights could still lead to a legal battle.
Checklist for Entrepreneurs
Take the following three steps before you apply for a name based on its status:
- Look at the “Status” and “Documents” tabs.
- Conduct a “Zombie Test.”
- Consult with a trademark attorney.
Apart from that if you want to know about How Rubber Badges Help Small Brands Get Noticed Easily then please visit our Business Law Category.
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