Answer
Can I use a name whose trademark is dead or abandoned?
Lawyers call this: abandonment · 15 U.S.C. § 1127
Short answer
Maybe. A dead USPTO record is a lead to investigate, not a green light. The record tracks a filing, not the owner’s rights. Trademark rights in the United States come from using the name, so an owner whose application died can still be using the name and still hold rights in it.
The word “abandoned” means two different things. An abandoned application is a filing the USPTO closed, often because someone missed a deadline. An abandoned mark is a name its owner stopped using with no intent to resume. Only the second frees the name.
What changes the answer
- Why the record died
- An application goes abandoned when the applicant misses a response deadline or never proves use. A registration is cancelled when the owner skips a required maintenance filing, or expires when it is not renewed. None of these says the owner stopped selling.
- Whether the owner is still using the name
- This decides most cases. A live website, current listings, or a storefront under the name mean the rights are likely still there, registered or not.
- How recently it died
- An applicant can often revive a recently abandoned application. Until that window closes, the record can come back to life.
- Whether others are using similar names
- A dead record may be one of several users of the same name. Clearing one does not clear the rest.
The rule
The Lanham Act treats a mark as abandoned when its use has been discontinued with intent not to resume. Intent can be inferred from the circumstances. Nonuse for three consecutive years is prima facie evidence of abandonment — meaning it shifts the burden to the owner to explain. Token use made only to reserve rights does not count. A mark can also be abandoned when the owner’s conduct lets it become generic or otherwise lose its meaning as a mark. 15 U.S.C. § 1127.
An unregistered owner can still sue for infringement, 15 U.S.C. § 1125(a). And the registration bar in 15 U.S.C. § 1052(d) reaches not only registered marks but “a mark or trade name previously used in the United States by another and not abandoned.” The examining attorney will not cite a dead record against your application, but the prior user can oppose it or sue.
An applicant has limited time to revive an application abandoned for an unintentional missed deadline: two months after the notice of abandonment, or, if the notice never arrived, two months after learning of it and no later than six months after the USPTO record shows the abandonment. 37 C.F.R. § 2.66(a) (2026).
What to do next
Search the USPTO database with dead records included. For each dead record on a name close to yours, open it in the USPTO’s status system (TSDR) and read why it died and when. A missed office-action deadline tells you something different from a registration that lapsed after years.
Then look at the market. Search the name with the goods, check the owner’s website and social accounts, marketplace listings, and state business and trademark records. If the owner is still selling, treat the name as taken. If you find no use for years, that points toward abandonment, but it is still a factual judgment.
Some owners will sell or license a name they no longer use. A written agreement with the prior owner is cleaner than betting on abandonment.
A record that died years ago, with no trace of use anywhere, is a call many owners make themselves. A recent death, signs of ongoing use, or a plan to build a real business on the name is where a lawyer’s investigation pays for itself.
If you found a dead record close to your name, Valet Law, PLLC can investigate whether the prior owner still has rights and tell you how much risk is left.
Attorney review is provided by Valet Law, PLLC, a law firm separate from Trademark Valet, LLC. Keep confidential facts out of public tools. Your first message to Valet Law should identify the parties and the general issue only. Wait until Valet Law confirms it can discuss the matter before sending confidential details.
Who checked this
Reviewed and approved by Brandon Leavitt on 2026-10-02.
General information about how trademark law works. It is not legal advice about your situation, and reading it does not make anyone your lawyer.