Dead or live marks on USPTO trademark database

Anyone can search trademarks on the USPTO’s Trademark Electronic Search System, or TESS for short. The status of each trademark filing on TESS will be identified as either live or dead. Understanding the live or dead status of the trademarks on TESS will help formulate an effective trademark strategy.

Keep in mind we are talking about trademark filings with the USPTO only. We are not discussing state trademark filings or unregistered common law trademarks.

What is a dead trademark?

A dead trademark filing has been abandoned or canceled. Dead trademarks will not be an obstacle to an pending applications. If an application never matured into a registration, then you will only see an application number. Trademark applications typically die when the applicant fails to respond to particular deadline. In some cases, a trademark application may die due to failure to overcome a refusal.

A registration that was not maintained (renewed) may be indicated as canceled for failure to file required maintenance documents (such as a Section 8 statement of continued use). A registration may also be canceled as a result of a trademark cancellation proceeding filed with the TTAB.

What is a live trademark?

A live trademark filing is still active. It is possible for a registration to be shown as live even after a renewal deadline has lapsed. Keep in mind that owners have a 6-month grace period to maintain a trademark registration. Our knockout searches are typically limited to live marks.

Live trademark filings can block the registration of a pending application. If a likelihood of confusion refusal is based on a registered mark, you should check to see if any post-registration deadlines are quickly approaching.

What can you learn from a dead trademark application?

You can gain valuable insight on certain marks by delving into how the application died. Was the abandonment the result of a failure to overcome a refusal or failure to show use? While past results do not guarantee future success, studying the past may be particularly helpful if a dead trademark encountered certain rejections which were difficult to overcome.

When might a live trademark filing die sooner than expected?

Live trademark registrations will encounter potential death every time a post-registration deadline approaches. However, a live trademark filing may die prematurely as a result of an adversarial trademark opposition or cancellation filed by a third party.

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Vic Lin

Vic Lin

Startup Patent Attorney | IP Lead Partner at Innovation Capital Law Group
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Vic Lin

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