Trademark is a complex form of intellectual property. The owner of a trademark does not own a word or an image but rather the use of it to identify the source of goods or services.
Knowing what your trademark protects, and how to use it, is the key factor in maintaining your trademark.
When you first apply for a registered trademark, you must file a trademark statement of use with the application. The statement is proof that the trademark is actually in use in commerce. The requirement to show the actual use of the mark is important, as provided in the statement of use.
Trademark protects the use of a mark to identify the source of goods and services. If the trademark is not being used, then it should not be protected. Trademark protection is not meant to warehouse interesting brands for future, possible use.
How long do trademarks last?
Unlike patents and copyrights, trademarks do not expire after a set period of time. Trademarks will persist so long as the owner continues to use the trademark. Once the United States Patent and Trademark Office (USPTO), grants a registered trademark, the owner must continue to use the trademark in ordinary commerce.
Just using the mark, however, is not enough. Trademark section 8 requires the owner to provide evidence that the trademark continues to be in use. To show the mark is still in use, the owner must file a section 8 declaration.
That proof takes the form of a sworn statement from the owner that the mark is still in use. The owner must file the declaration after the fifth anniversary of the USPTO's registration of the trademark but before the sixth anniversary. For a fee, the owner can request a six-month grace period if the declaration is not filed prior to the sixth anniversary.
Maintaining your trademark
On the tenth anniversary of registration, the owner has to provide actual proof that the trademark is in use. In addition to the declaration, like the trademark section 8 declaration, the owner must provide photographic evidence of a product, using the trademark, available for sale. As part of the trademark renewal process, every 10 years thereafter, the owner will need to similarly provide proof of usage and a declaration—unless the trademark is to go abandoned.
Understanding trademark maintenance requires understanding what a trademark is. If you own a trademark, then you do not own a logo or a word or a brand. You own the right to exclude others from using that trademark on goods or services. The trademark is how you tell your customers that your products come from you. The USPTO has a direct interest in protecting your ability to enforce those rights.
To keep those rights enforceable, however, you have to keep using them. You have to make products, sell them, and include your trademark on them. If you fail to do any of those, then you no longer have a trademark to protect. If you fail to do them long enough, you will lose your rights to use the trademark.
To avoid losing those rights, mark the fifth and every 10-year anniversary on your calendar. Make sure you can provide a section 8 declaration and that you have proof of usage of your trademark. Failing to do so can cause you to lose out on the trademark you sought to protect.
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