A question that comes up with some regularity in our practice goes something like this; “So-and-so has stopped using their trademark, can I file a registration application for, and use, that same mark now?”
A well settled point of trademark law is that a mark must be used in commerce to be maintained, or else it is abandoned. (Read more about trademark abandonment in our post here). And a gap of three years or more of not using a trademark in the United States will create a presumption that the mark has been abandoned. But the clarity ends there, because in the U.S., the issue turns not always on time, but on “intent.” If a trademark owner “intends” to stop using a mark, the time becomes irrelevant, and the mark would be immediately considered abandoned. But what if the use of a mark simply ceases, at least for a while, and the mark owner, either actively or passively, suggests that they intend to resume the use of the mark.