How can I buy or use a trademark that is already on the register?
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When it comes to obtaining the perfect trademark, it's best to view it in terms of a business negotiation wherein your trademark is a form of owned property. When you think of trademarks in this regard, you’ll see there are a number of possibilities for obtaining existing marks from the registry.
Securing a Trademark Similar to Trademarks Already on the Register
One option is that you offer one of your trademarks in exchange for the mark sought. Another popular and easy way to negotiate for the trademark you want is by contacting the business and offering a trade or barter. Trademarks, similar to web addresses, are a growing business and more often than not a business is willing to consider trading out a mark if you have something equally useful to offer. If the company seems hesitant to part with their trademarks, consider buying a similar earlier registration for leverage against your main obstacle. This will put pressure on the company to dispose of their now less unique trademarks.
When the business is not willing to trade marks, you may be able to make an offer and simply buy the trademarks you want. Remember that the cost of buying a trademark is often much higher than that of creating a new mark independently. Additionally, some companies are heading into the franchising business and may allow you to license the trademark.
Using Trademarks Without Buying Them
If the trademark is going out of fashion with its owners, you may be able to buy a "consent to use." This may also be worded as an agreement not to sue. Although this may not be adequate to permit you to obtain a U.S. trademark registration, it will be useful assurance to your client that it may use the mark without fear of action by its owner.
If the trademark is inactive, you can act to cancel the prior user's mark. The federal government considers a trademark dead by default if it's not used for three consecutive years.
If you are willing to part with some aspect of your trademark, consider changing your company name. Small changes such as the addition of a word may suffice. If the prior user's trademark is geographically limited you may be able to use the trademark in the rest of the country. Variations in spellings will not suffice for differentiating your trademark.
Remember that if a trademark is important to you, it is prudent to act quickly. If you are considering a trademark for your intellectual property, it's in your best interest to consult with a trademark attorney in your area.