What is the name of your state (only U.S. law)? Florida
I purchased a small company and the trademark they had is dead (2 years now). Is there a way to "revive" it? or do i have to start over?
Garfield
What were the terms of your purchase agreement, Garfield? Was the trademark sold to you along with the business? Or did the owner of the business you purchased retain rights to the name?
Trademarks (like the name of the business you purchased) can be bought and sold. Trademarks can also be abandoned by the owner and, once abandoned, can be used by someone else.
Abandonment of a mark often happens when the business that used the mark is abandoned. But it is not safe to assume a mark is abandoned just because it is no longer federally registered. Federal registration of a mark is not necessary in the US to have rights in a name. It is the use of the trademark in commerce that confers rights.
In addition, a mark is not really considered abandoned until it has not been in continuous use for 3 years or more. Even then, someone who wants to use a mark considered abandoned could face a challenge by the original owner. The original owner might retain rights if he can show there was no intention to give up the trademark. The lack of use could be shown as the result of temporary financial difficulties or business/product revisions or for health reasons.
So ... my recommendations are that you first review your purchase agreement documents to see if you purchased the trademark when you purchased the business (this would not be unusual) and then, if the agreement does not show that the trademark was purchased, you can contact the previous owner of the business and inquire about the trademark. The owner might tell you it was sold with the business or it is free to use.
If the previous owner wants to retain the rights in the mark because he plans to open another business elsewhere under the name, and he is not amenable to selling the rights to you, you will then have to come up with a unique name for your business and build up a customer base under the new name. Once you start using the new name as an identifier for your business, you can register this new name with the USPTO - although, again, registration of a mark is not a necessity. It is the use of the mark that provides you with rights in the name.
Good luck.
