Can Trademark Rights be Lost?

Rights to a trademark can be lost.  They can be lost through abandonment, improper licensing or assignment, or genericity.

A trademark is considered abandoned when its use is discontinued with no intent to resume use.  Intent can be inferred.  Non-use for three consecutive years can be used as prima facie evidence of abandonment.  The point of trademark law is to protect marks that are being used, so if someone stops using the mark, they could possibly be at risk of losing their trademark protection.

Another way that trademark rights can be lost is through improper licensing or assignment.  For example, if a trademark is licensed to a franchisee and there is not adequate control or supervision by the trademark owner the trademark could be cancelled.

Genericity occurs when an originally distinctive trademark becomes generic, causing it to lose its trademark protection.  A work becomes generic when in the minds of the public the word denotes a broad type of product.  At this point, it is no longer entitled to trademark protection.  Some examples of generic terms are “thermos” and “aspirin.”  Although these terms may have originally enjoyed trademark protection, they are no longer due that protection because they are considered to be generic terms.

The point of trademark law is to protect trademarks that are being used.  Therefore, a person who has chosen to get a product trademarked should be certain to continue using that trademark, so that they won’t be in danger of losing it.


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