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[tacitblue]

I am looking to start a clothing company and had a question.

Background:

The name I am looking to use was previously used by another person (I dont know them) and was a clothing company.  They filed for the trademark in May 2002, and were granted registration in May 2004.  It was then abandoned in December of 2010.

The website for the clothing company is still up.  It was created in June 2002, last renewed june 2010, and expires in june 2012.  From the looks of it, the site and hosting is just auto-renewing every 2 years.

Now here is what I am sure of :  The company was started in 2002, but their website has not been updated since 2003 (used waybackmachine.org to verify).  I have not seen any shop selling or anyone wearing the shirts ever (I am in the same industry and if they still sold products, I would see them).

My question is, when I submit my trademark application, what are the chances I get rejected due to common law (their website still being up)?  How extensive is their search regarding common law?  Meaning sure, their website is still up, but if you call the number it is out of service, their physical address is no longer the same business, and no one responds to their emails.  So they ARE NOT still selling product, but does the USPTO just see there is still a website and rejects my application?

Any help or info would be great.  Thanks!

[OMG IP]

Your trademark registration application will not be examined in the realm of common law; Examining attorney's compare your applied for mark to previously regisetered marks or pending applications in the USPTO database.

[Kaitlin]

Still, to help guard against being blind-sided by an opposition after you've started the registration process, you could do a bit more to see what you can find about the company's current status.  It is possible for someone to crop up and rebut a claim of abandonment, if the business can show good business reasons for letting the mark go dormant for a time.  If they're sill alive, you may want to get further assurance that the mark is dead, or rethink your choice of mark rather than risk the possibility of litigating the matter in an opposition or cancellation proceeding.

If the business is incorporated, the secretary of state for the state where they are incorporated will have information on the current status of the corporation and information on the name and address of a "registered agent" for the business.  Even if not incorporated, they should have made other official filings for the business with the state and/or local authorities where they have their bricks and mortar address.  Keep a record of your attempts to find them, as this could help show that your deliberate use of their mark was done in a good faith belief it had been abandoned if they should somehow pop up later.

[tacitblue]

Thank you for the info.

I have documented my attempted calls and emails.  I looked the company up on the secretary of states site and it is listed as suspended.