Wednesday, February 19, 2020
Can I Use Old Trademarks on T-Shirts?
Apples and Oranges? You may be confusing trademarks and copyrights and we think you should put your t-shirt plans on hold until you sort things out.
What's the diff? Copyright, which protects literature, music, art, and similar expressions, has a limited shelf life (generally 95 years from first publication). That's why any copyrighted work first published in the United States before 1925 is now in the public domain and free for you to print on a t-shirt.
Trademark law, however, protects any distinctive word, phrase, logo, graphic symbol, or other device that is used to identify a product or service. Trademark rights don't expire as long as the trademark owner continues to use the mark in commerce. So, vintage trademarks, once used by existing companies may still be protectable, particularly if they contain a word mark that is still in use or a logo that has been freshened up over the years.
Abandonment. If, however, the vintage mark is for a product that is no longer in existence, you may be free to use it, provided the mark has been abandoned. Abandonment occurs when the mark is no longer used in commerce and there is sufficient evidence that the owner does not intend to use it. Under the Lanham Act, a trademark is presumed to be abandoned after three years of nonuse. This presumption does not mean that the mark is automatically classified as abandoned after three years of nonuse. It means that the burden of proof shifts to the owner of the mark to prove it is not abandoned. The owner must prove an intention to resume commercial use.
P.S. Dept. Beware, some previously abandoned marks may have been revived as zombie trademarks.