C3 Patent and Intellectual Property Law

Jul232009 | Steve O'Donnell

Robbing the logo graveyard

What happens when a company goes out of business or rebrands itself? Can someone else step in and start using the abandoned trademarks? Sure, but make sure it's dead before you dig it up.

The strength of a trademark comes from its use. A trademark that isn't used, doesn't identify the business that owns it and doesn't have much, if any, power to go after someone using a similar mark. If an established mark is abandoned, it will take a while before any of it's brand-recognition muscle will deteriorate to where someone else could appropriate it.

For example, Lancaster General Hospital recently underwent a brand overhaul and they now have a spiffy new logo and a new name.

This is the old logo. I like their old logo, the hands holding a person seems like the perfect image for a hospital to convey.

The new logo is more colorful and abstract. For some reason it reminds me of the Tron video game. Generally, abstract is good for trademarks and over time, this logo will become associated with the hospi. . . excuse me, health system.

Could someone use the old logo to mark their new business? It is a good logo, I could see it being used by a chiropractor, massage therapist, or any one of a number of health care businesses. What, if anything is stopping people from dusting off and repurposing old trademarks?

There are at least two things to think about if you want to use an abandoned mark: the first is whether the mark still has any breath left in it; the second is whether there is any copyright issues to worry about.

If the mark still has some identity to it, then a new use is an infringement. It is going to take time for people to forget that an old logo used to be associated with a certain business. For example, if people see a massage therapist using the old LGH logo, they will probably think that the therapist is associated with the hospi. . . health system. It may be years before people in Lancaster, PA forget about the old LGH logo to the point where someone else could use it in Lancaster. That might not be such a concern if the new user wanted to use the logo in another state where people don't recognize it.

Another possible problem would occur if the logo was copyrighted. Copyright duration in this context has nothing to do with whether something is used or displayed, so even if there wasn't a trademark issue a new user might not be able to make the logo its own.

The possible problems are usually much smaller if a business has gone out of business than if they've rebranded, but not always. Often a business will sell its IP when dying so it can be an issue to figure out if someone else owns the rights to the mark and is planning on resurrecting the brand.

In short, if you want to revive someone else's abandoned logo as your own you should speak with an attorney before you start printing your business cards.