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Trademark Law: Understanding Abandonment

Your trademarks define and protect your business. When you have trademarked your business name, slogan, logo, or other intellectual property, it’s up to you to protect your trademark and avoid losing them to other companies. Abandonment is a legal concept that can invalidate a trademark and leave it available for use by other parties.

What is Abandonment?

Abandonment is the loss of trademark rights. There are several ways that a business owner can abandon their trademarks. Once this happens, you lose your exclusive rights to your trademarks, which can significantly impact your business. Depending on the circumstances, a company might lose its trademarks in one of four ways.

1. Nonuse

If you simply stop using your trademark without the intent of ever using it again, this is considered abandonment. After a period of three years of nonuse, the trademark may be declared abandoned and be available for third-party use. This can weaken your business image and dilute your branding.

2. Improper Use

Improperly using your trademark can also lead to abandonment. If a trademarked term becomes too broad, vague, or common, it may no longer be trademarked. A trademark can also be abandoned if the company licenses rights excessively and fails to control their own trademark. You can also lose a trademark to improper use if you fail to enforce your rights. For example, if you ignore cases of trademark infringement or do not pursue legal avenues to protect your trademark, you are not enforcing your rights.

3. Lapse

Trademarks can last indefinitely, but it is up to you to maintain your registration. After the initial registration period, you must renew your registration every 10 years. When you renew your registration, you have to provide evidence of current usage of the trademark. If you don’t file the appropriate documents in the proper time frame, the government can cancel your trademarks and consider them abandoned.

4. Express Abandonment

Express abandonment occurs when an applicant withdraws their registration documents.

Standard of Proof

The standard of proof for abandonment in the United States is a clear and convincing burden. This simply means that the party claiming abandonment must provide evidence that is more likely true than not.  Once the trademark has not been used for at least three years, this burden of proof shifts. After three years, there is a presumption of abandonment. This shifts the burden of proof to the trademark owner. At that point, they have to prove that they have used the trademark during the preceding three years and that they plan on continuing or resuming use.

If you’re struggling to protect your trademarks or other intellectual property, it’s crucial to work with a business lawyer. Reach out to the team at Trembly Law Firm to schedule a consultation. Call us at 305-431-5678 now.