Trademark Use Is All Important
By Eric D. Morton
Trademark use is all important. A trademark must be used to be valid. If a trademark is not used, it is not a trademark. Use is the very foundation of trademark law. As I used to tell my students when I taught trademark law, trademarks are all about use. Every legal issue revolves around the use of the trademark. For instance, who owns a trademark is determined by who controls the trademark's use. All infringement cases turn on the use of the trademarks in question.
The trademark registration laws, and rules that govern the registration of trademarks by the U.S. Patent and Trademark Office, recognize use as all important. The owner of a trademark cannot obtain a registration until the owner proves use of the trademark. The owner must declare the dates that the trademark were first used and first used in commerce.
In order to keep one's rights to a trademark, the owner must continue to use it. If the trademark is not used, then it is not a symbol of the origin of the owner's goods or services and is not a trademark. The owner loses the right to use it exclusively.
Recently, the U.S. Patent and Trademark Office ("USPTO") began to scrutinize the continue trademark use. After a trademark is registered, the owner must file a Declaration of Continued Use between the fifth and sixth anniversary of the registration in order to maintain the registration. These declarations are required under Section 8 of the Trademark Act are called Section 8 Declarations.
