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Can I use the trademarked logo of a company that has been out of business? Trademark

Discussion in 'Copyright, Trademark, Patent Law' started by gomblue, Dec 16, 2011.

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  1. gomblue

    gomblue Law Topic Starter New Member

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    Can I use the trademarked logo of a company that has been out of business?

    The trademark is "DEAD", and the company has been out of business (and is not using the name) for over 20 years?

    I am interested in using their logo and company name.

    Thank you
     
  2. disagreeable

    disagreeable Well-Known Member

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  3. swlswl

    swlswl New Member

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    This is from the link posted by Disagreeable:

    WILL MY REGISTRATION BE CANCELED IF I DO NOT FILE A §8 DECLARATION?

    Yes. The USPTO will cancel any registration on either the Principal Register or the Supplemental Register if a timely §8 Declaration is not filed by the current owner of the registration during the prescribed time periods. The USPTO has no authority to waive or extend the deadline for filing a proper §8 Declaration. Registrations cancelled due to the failure to file a §8 Declaration cannot be reinstated or "revived." A new application to pursue registration of the mark again must be filed.

    WHEN MUST I FILE A §8 DECLARATION?

    The owner of the registration must file a §8 Declaration during the following time periods:

    1.First Filing Deadline: File a Declaration of Use (or Excusable Nonuse) between the 5th and 6th years after the registration date. See 15 U.S.C. § 1058. If the declaration is accepted, the registration will continue in force for the remainder of the ten-year period from the registration date, unless cancelled by an order of the Commissioner for Trademark or a federal court.

    2.Subsequent Filing Deadline: File a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between the 9th and 10th years after the registration date, and between every 9th and 10th year after the registration date thereafter. See 15 U.S.C. § 1059.

    NOTE regarding Grace Period Filings: The above documents will be accepted as timely if filed within six months after the deadlines listed above with the payment of an additional fee.
     
    Last edited: Dec 18, 2011
  4. disagreeable

    disagreeable Well-Known Member

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    I had read that, when I got the link. I don't have the knowledge to speculate whether it means another can pick it up or if it remains public domain, since the original register of the mark dropped it. That was why I linked and gave my impression.
     
  5. swlswl

    swlswl New Member

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    This isn't on the above link.

    Trademarks ® exist only when they are used in connection with a good or service.

    Pirone v. MacMillan, Inc., 894 F.2d 579, 581 (2d Cir. 1990)

    no trade = no trademark.

    A mark may lose its trademark protection by failing to police the mark.

    When a mark is abandoned, it loses its trademark protection and becomes available for adoption as a new mark by others.

    When necessary, however, courts will protect the public from any confusion that may arise from the resumption of use of the mark after it has been abandoned.

    Rust Environment & Infrastructure, Inc. v. Teunissen, 131 F.3d 1210 (7th Cir. 1997).
     
    Last edited: Dec 18, 2011
  6. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Nice case cites. IF the users don't know what "police" means there are actually a couple of ways that a mark can be lost, even if "live."

    1. A failure to stop people from using your mark wrongfully when you know wrongful acts are occurring causing confusion in the marketplace.
    2. Failure to prevent people from using a term that would make your mark "generic" such as using the word to "Xerox" instead of to "photocopy."
     
  7. legaladvice99

    legaladvice99 New Member

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    Marks can be abandoned if not used. Filing a trademark requires an understanding of the tm process.
     

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