How Long Does a Trademark Last
Before filing a trademark application, you may have the question how long does a trademark last? The quick answer is potentially forever. Although patents and copyrights both eventually expire, a trademark will not expire provided that it is continually renewed.
How Long Does Trademark Registration Last?
Once you’ve been granted a trademark registration, your trademark will last 6 years at which time it must be renewed. Thereafter, it must be renewed every 10 years from the date of registration. If it is continually renewed, the trademark will not expire.
This doesn’t mean that you can’t lose protection during this time. If it’s proven that you haven’t used your trademark in commerce for three consecutive years, it is considered presumptive abandonment. If a trademark registration is not in use, a third party can file a trademark cancellation to have the trademark cancelled. If successful, the trademark status will change from live to dead. This opens the door for third parties to claim rights over it.
What is Use in Commerce?
How long a trademark lasts often depends on how long it is actively used in commerce. The USPTO defines this as a bona fide use of your trademark “in the ordinary course of trade.” You cannot register a trademark simply to reserve it. If a trademark application is filed on an Intent to Use basis, it must include a verified statement saying you will use it in commerce. Then it must be used in commerce before it can register.
The USPTO has very specific definitions for what constitutes “use in commerce.” Only the following situations will meet these requirements:
- The trademark is placed on the product, labels, displays, tags or containers.
- The product must be transported or sold in commerce.
- Service marks must be used in relation to sales, advertising or display of service such as on a website.
- Services must be rendered in commerce.
The House Judiciary Committee has recognized that ordinary use in commerce can vary by industry. Whereas one business may sell manufactured items daily, another might only get new orders seasonally. This is taken into account when considering proper use in commerce.
The Trademark Electronic Search System (TESS) lists more than 5 million trademark applications over the years that have since been abandoned for one reason or another. Non-use is the primary reason for any trademark registration to abandon. Legally, your trademark will only last as long as you utilize it.
When Does Trademark Protection Begin?
Although trademark registration is beneficial, it’s not required to have trademark rights. In other words, common law trademark rights often begin the moment you use your trademark, logo, slogan, brand name or other trademarkable property in commerce. Even if you fail to register with the USPTO, you’ll still have certain rights indefinitely as long as you continue its use. Common law protections offer minimal safeguards however, and without a federal registration, you’ll lose much of your legal recourse regarding trademark infringement.
Your federal trademark will typically become registered within nine months if no issues occur during the process. Although you have rights over a trademark immediately upon its commercial use, nationwide protection begins once your trademark registers.
This registration process can be delayed if someone files a trademark opposition within 30 days of your trademark’s publication in the Official Gazette. There are about 6000 trademark oppositions filed in the TTAB each year.
Trademark Maintenance Documents
Common law trademarks are those which are used commercially but not registered with the USPTO. These trademarks don’t require maintenance, but they also typically don’t receive nationwide protection. And while federal registration can last indefinitely, you’ll need to file certain documents to maintain the trademark.
- 5-6 Years Following Registration: Section 8 declaration required affirming continued use. If possible a Section 15 seeking incontestability should be filed during this time as well.
- 9-10 Years Following Registration: Section 8 declaration and Section 9 renewal required.
- Every 10 Years Following Registration: Section 8 and Section 9 forms must be filed.
Failure to file these documents in a timely manner will result in trademark abandonment.
Dealing with Lapsed Trademark Registration
Each year about 300,000 trademark registrations and applications are abandoned. If you ever fall into this statistic, you’ll lose the federal protections granted with USPTO registration. This is true even if you continue commercial use.
If you fail to meet trademark renewal deadlines for your trademark, you still have some recourse for extending protection. The USPTO grants a six-month grace period for those who fail to file their maintenance documents on time. Filing during this grace period allows your trademark to be renewed, but it will require additional fees. If you fail to renew during this timeframe, your federal rights cease to exist. This means you’ll have to file a new trademark application, and there’s no guarantee your trademark will be accepted again.
This is why, if you want your trademark to last indefinitely, you need to remain vigilant about renewals. Protecting a trademark also requires continued trademark monitoring for potential infringement.
If you need assistance with a trademark, contact us today for a consultation.