Live vs Dead Trademarks: What Does It Mean?
One of the first steps you take in the trademark process is to make a broad search of all the trademarks that exist and to be very attentive to the possible complications that may exist.
PS: A good initial research is the base to start your application on a good foot, learn more about the steps you need to make it perfect!
When you do that search, you will likely that some trademarks are shown as “DEAD” while others are “LIVE.”
What exactly does this mean? And why should you care?
Let’s dig into the meaning of “live” and “dead” trademarks.
Keep in mind that a trademark application must be applied for and registered at the United States Patent and Trademark Office (the “USPTO”). It’s a surprise to many business owners to hear that just because you apply for a trademark registration doesn’t mean that the USPTO will accept it. In fact, most applications get rejected.
If you know that most trademark applications fail to get registered, then you’d be right to be concerned when you see your trademark or something similar marked as “LIVE” on the USPTO’s website.
When a trademark is labeled as “live,” that means one of two things:
- Either that trademark application has been approved and registered, OR
- That trademark application has been filed but is in the process and has not been fully registered or rejected yet.
Pretty straightforward, right? They are basically the ones that were approved or are still in the game.
When you’re searching through other trademarks to see if yours is available, then a “live” trademark is usually concerning or bad news. On the other hand, it is usually a good sign to see any similar trademarks marked as “dead.”
“Dead” trademarks are the ones that are no longer in the game to continue with their application, generally for reasons:
- Their 1(a) application was rejected. Note that this often happens because a business owner fails or forgets to respond to office actions sent by the USPTO: As we explained in this blog post, filling out an office action is a complicated process due to the numerous questions you have to answer and the legal terminology in which they’re asked. Therefore, many of the applications that are dead are because people failed
- Their 1(b) application was rejected.As we explained in this blog post about 1(b) applications, that application process is a little different. Due to the nature of these applications, there will ALWAYS be an extra step where the USPTO later asks for evidence of use and applicants must provide such evidence. It is quite common for people to forget or not answer the USPTO’s requests at this stage in the process to answer them in time, which is 6 months after the USPTO files the office action.
- The application was registered at one point, but the registration has been withdrawn, canceled, or abandoned. Just because you get a trademark registered doesn’t mean you’re guaranteed to maintain that registration forever. Trademark registrations can be voluntarily withdrawn, canceled due to a dispute with another brand, or abandoned. Abandonment occurs when the USPTO does not receive required filings showing that the trademark is still in use. Maintenance filings are required every 5-10 years, and if you miss those deadlines or mess up those filings, your trademark could go from “live” to “dead.”
The process of reviving a trademark
Is it possible to make a “dead” trademark “live” again? Let’s talk about that more.
Remember that a pending trademark application will be marked as “live” throughout the pending process until it is either registered (in which it will continue to be marked as “live”) or a final office action is filed (in which it will be marked as “dead”). In these cases, once a trademark is marked as “dead,” there is no way to revive it and bring it back to life. The only hope here is to possibly file a new application, pay the appropriate filing fees, and try again.
Or at least, that’s usually the case. What if you see your trademark switch from live to dead? Well, you may be able to make this trademark “live” again.
If you miss a deadline to reply to the USPTO, depending on the timing and facts of your situation, you may be able to revive it in a simpler way and not have to start the process over with a new application.
The opportunity to revive a trademark is an exception and is not often allowed. But it’s worth speaking with a trademark lawyer before you completely lose hope or start the process over again.
Since trademarks are our jam, we will help you through the whole process and skip the fuss.