Trademark Not in Use

**bloomsharp** · 01-28-2011, 04:03 PM

I have a name that I'd like to use for my beverage but in doing a search found it already registered to someone back in 2002 as a food & beverage establishment. However, in conducting a search , nothing came up which makes me think that they never actually used the name.

If that's the case I know one option is to see if they would sell the TM. What are my other options besides finding a new name. If I decide to go ahead and file, how do I let the TM office know that the name hasn't been used by the original owner?

Thanks

**Mr. Knowitall** · 01-29-2011, 05:52 PM

If you file for a conflicting mark the USPTO will presumably reject the mark on that basis and you can attempt to persuade the reviewing officer that the other company's mark has been abandoned.

**LyonLegal** · 03-02-2011, 12:41 PM

is their mark registration "live"?
After this time it could have been abandoned.

**KeyWestDan** · 03-02-2011, 06:45 PM

All federal trademarks MUST be used continuously in INTERSTATE commerce. You can file a petition to cancel the trademark and file your own trademark at the same time.

Check in their home state that they don't have a state trademark. If they do, that will be much more difficult and expensive to cancel and without cancellation they can sue you in their home state and/or any other state they might have a state trademark in.