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. What the live/dead indicator might not reveal is the status of the owner’s current use of the mark.
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 filing?
A trademark filing dies when it becomes abandoned, expired or canceled. Dead trademarks cannot be used to block pending applications. If an application never matured into a registration, then you will only see an application number. Trademark applications may die as a result of not meeting deadline. In some cases, a trademark application may die due to failure to overcome a refusal.
There are dead registrations as well. 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.
Do not automatically assume that a dead filing means that the owner is no longer using the mark. A registration may lapse, for example, due to a failure to renew a mark that is still being used by the trademark owner.
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. A live registration may also have had certain goods or services removed from the record due to nonuse or a partial cancellation. It helps to pay particular attention to the identification of goods/services, especially if a registered mark is of particular concern.
What can you learn from a dead trademark filing?
You can gain valuable insight on certain marks by delving into how an application or registration 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 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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