A trademark is nothing more than a symbol, design, word, or phrase that identifies a product to the public. An individual or business who has the trademark registers it with the United States Patent and Trademark Office (USPTO), and that agency issues the trademark registration.
As you can see from the following chart, the filing of trademark applications has been steady and strong in the U.S. since 2000.
An active trademark is well-maintained and regularly published in ads, in blogs, and in publications. While a trademark is active, its owner can take action in court against unauthorized use of the trademark. On the other hand, a dead trademark is one that is no longer active and it faces certain risks depending on the popularity of that trademark.
Keeping your Trademark Healthy
To keep a trademark healthy, the trademark owner must continue to respond to requests by the USPTO and follow the rules issued by the same office. If the owner does not follow the rules, the trademark eventually expires.
A dead trademark faces certain risks of being revived – potentially by someone the original owner would rather not have the trademark.
How a Trademark Dies
In contrast, a trademark can die for various reasons – the following being the most common:
Genericity – when a trademark becomes so popular that people begin using it to identify the product, it becomes generic. For example, zippers were once trademarked but people began using ‘zipper’ as the generic name for the product and thus absorbed the trademark into the lexicon. Other examples of genericity include: thermos, cellophane, escalator. These trademarks have all died and gone to the trademark graveyard (aka the dictionary).
Abandonment – when a trademark is effectively ignored, it also dies. Not using a trademark for three years or more is considered true abandonment but abandonment is construed by the actions of the trademark owner and the exact circumstances vary on a case by case basis.
Poor Licensing – this occurs when a trademark owner licenses the trademark to someone else without good measures to control the product’s production. For example, a store owner may allow their brand to expand as a chain by licensing the trademark to someone else, but there must be some supervision in place. Otherwise, the courts will view it as relinquishing the trademark instead.
The USPTO has a convenient online search tool called the Trademark Electronic Search System (TESS) that allows trademark owners to check for both live and dead trademarks. The database will indicate whether a trademark is non-existent, live, or dead.
Trademark Anti-Death Campaigns
Just like forgetting oil changes will kill your car, trademarks that are not well maintained can eventually die. Some trademark owners implement anti-death campaigns to avoid allowing their trademarks to slide gradually into the graveyard. Anti-death campaigns include advertising campaigns that carefully proclaim the trademark and associate it with the product skillfully while making the trademark apparent. For example, using KLEENEX brand tissues to reinforce the trademark, KLEENEX, while associating it with the product.
While some companies fight genericity hard, others yield to the fact that the trademark’s popularity is good for business. When a desirable brand is counterfeited, the generacide problem is also a sign of success. One of the most popular trademarks to face genericity – LEGO – experienced an interesting situation. Customers used legos to refer to the branded products and did not use the term for competing products, so the LEGO brand and trademark remains alive and well despite the threat of genericity.
Reviving a Dead Trademark and Zombie Trademarks
Trademarks are born and some die, but they can also be revived. A trademark owner can revive a dead trademark if the registration lapsed accidentally. For example, if the USPTO cancels a trademark based on the belief that the owner didn’t respond to requests from the office, but the owner can prove they did respond, the office can revive the trademark.
A growing number of trademarks have lately been revived as zombie trademarks. ATARI, IRIDIUM, NUPRIN are all now used very differently from how they were used in the past because of the residual goodwill left over in consumer’s minds. Essentially, the new owner capitalizes on that goodwill gaining significant brand equity and saving loads of money and effort that would otherwise be spent educating the public about the new brand.
Looking for a well recognized trademark you can revive from the dead? The BrandlandUSA blog lists “100 Dead Brands To Bring Back” as well as their reasons why each should be revived.