A trademark is “abandoned” when:
- it is no longer used in commerce, and its owner no longer intends to use the trademark in commerce. Three consecutive years of non-use is prima facie evidence of abandonment. Use means ordinary use in the course of commerce and not just token sales in an attempt to reserve a right in the mark; or
- the owner’s conduct, including acts of omission & commission, causes a mark to become the generic name for the goods or services on or in connection with which it is used, or otherwise to lose its significance as a mark.
Examples of a trademark owner’s conduct which causes a mark to lose its significance are:
- not policing the mark;
- assigning a trademark without goodwill;
- uncontrolled licensing;
- failure to object to use by others;
- production of various types and quality of products; and
- substantial & repeated changes in the mark
Abandoned Trademarks enter the public domain and are available to the first user.