Continued Use Required

The adage “use it or lose it” is applicable to trademark protection. A mark must be in continuous use for the owner to keep others from using it. If the mark falls out of use for a long enough period of time, it may be considered abandoned.

 A mark that has been registered with the PTO, if not used for three years or more, will be presumed abandoned. A “presumption” is a legal standard that means it is more likely than not that something has happened. Every presumption can be rebutted by credible evidence to the contrary.

For example, a company challenges the validity of a trademark arguing that it has not been used for three years. If the trademark owner can present a good explanation of why the nonuse does not constitute an “intent to abandon,” the mark will not be abandoned.

Despite the “use it or lose it” rule, the law often permits nonuse for a considerable amount of time. Such contingencies as temporary financial difficulty, bankruptcy proceedings, and the need for a product revision may all qualify as satisfactory explanations for nonuse of a mark.

There is no particular time period that the mark must be out of use to be considered abandoned (other than the three-year presumption mentioned above). Rather, abandonment will be decided on a case-by-case basis.

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