Print

Please login or register.
1 Hour 1 Day 1 Week 1 Month Forever
Login with username, password and session length

[barkerdzp]

Can a company with a Dead Trademark make a common law (or other) claim to the IP? For instance, let's say Pepsi allowed it's trademark to expire or cancel for The Choice of A New Generation. Another brand picks it up. Can Pepsi defend? If "Just Do it" were a dead mark, could Nike still protect it? What if it were no longer in commercial use?

[Kaitlin]

Can a company with a Dead Trademark make a common law (or other) claim to the IP? For instance, let's say Pepsi allowed it's trademark to expire or cancel for The Choice of A New Generation. Another brand picks it up. Can Pepsi defend? If "Just Do it" were a dead mark, could Nike still protect it?

Absolutely. 

What if it were no longer in commercial use?

That depends.  In the US, trademarks derive their legitimacy from use, and it's not permitted to warehouse trademarks.  So generally speaking a mark needs to be in commercial use to be a mark.  That being said, sometimes a company has a good reason for stopping use temporarily (could be a few years or more even), but if they can show good reason for the hiatus and reasonable plans to resurrect it, they can defeat a claim of abandonment.