Question: What is a dead trademark?
Answer: In the USPTO’s trademark database, records listed as “DEAD” no longer have any federal trademark registration rights.
Here are the three most common reasons that trademark filings become dead:
1. The initial trademark application never matured to registration.
When a trademark application does not mature to registration, whether due to a refusal or a third-party opposition, it dies and will be listed on the USPTO website as dead. These are public records that will remain there forever, even for listings that do not receive registration.
2. The previous owner did not file renewals on the trademark.
Another reason a trademark filing may be listed as dead on the USPTO website is if the trademark was registered, but the owner did not file renewals on the mark. Renewals are due periodically on trademark registrations and if they are not filed, the government will cancel the trademark and it will then be listed as dead.
3. Someone petitioned to cancel the trademark.
The final common reason for a trademark becoming dead is that somebody has petitioned to cancel it on grounds that it’s too similar to their own mark, or that the owner of the trademark has stopped using it. The trademark registration is cancelled by the trademark office based on that petition and then listed as dead in the database.
While a dead trademark no longer has any federal trademark registration rights, you still need to be careful that a trademark owner doesn’t have some sort of residual or common law rights in the trademark. Just because a trademark is dead does not necessarily mean it’s free for you to use.
With the foregoing in mind, just because a trademark is listed as “dead”, does NOT MEAN it is free for you to use. It is always possible the owner of the trademark still has significant common law rights which could put you in a difficult legal situation should you choose to adopt and use the trademark. It is always a good idea to have a trademark attorney do a full federal, state and common law trademark search prior to selecting and using any trademark.