The U.S. Patent & Trademark Office has its own search system that allows users to see what trademarks are pending/registered.  TESS is a great tool for conducting a preliminary (or “knockout”) search.  However, if you do not have experience with trademarks, the results can be confusing.  One element of that is the distinction between trademarks that are designated “live” or “dead.”  This blog post will give you a basic understanding of the live and dead trademarks.

Live and Dead Trademarks

First, keep in mind that both applications and registrations can be either live or dead.  While the designations “live” and “dead” may sound dramatic, their purpose is quite simple.  It is probably easier to think of these designations as the difference between “active” and “inactive.”  So a live trademark is either an active pending application or a registration.  A dead trademark, on the other hand, is one that has been abandoned by its owner or cancelled at the USPTO.

There are many reasons why an application or registration will go abandoned or cancelled.  Applications are frequently abandoned in response to an office action.  Sometimes the application’s owner does not file a response in time.  In other cases they may not respond because there is a refusal that would be very difficult to overcome.  Registrations, on the other hand, are cancelled when the owner fails to file a renewal.  Alternatively, they can be cancelled as part of a proceeding with the Trademark Trial & Appeal Board.  When an application or registration goes abandoned or is cancelled, it is then marked with the “dead” trademark designation in the USPTO records.

What Does the Live/Dead Designation Mean for Me?

As I mentioned up top, you most likely came across this designation while conducting a TESS search for your trademark.  Essentially, you can disregard any of the trademarks that you see as “dead.”  They will not be used or cited against you should you file a trademark application.  One small caveat to that: just because an application/registration is dead, that does not mean the owner is no longer using the trademark.  If they are, they may still have a claim of common law rights based on their use of the mark.  However, their dead trademark application/registration will not get in the way of your application, should you choose to file one.

Would You Like Assistance Searching the USPTO Records?

Conducting a thorough trademark search of the USPTO records can be difficult.  In addition to weird terminology like the live/dead distinction, it can be hard to tell what is and is not a potential conflict with your trademark.  I have years of experience helping clients to navigate the records and find potential issues, if there are any.  If you would like assistance with your search, please feel free to call me at (314) 479-3668, email me at kevin@yourtrademarkattorney.com, or complete the contact form found on this page to schedule your free initial consultation today.  I look forward to speaking with you.