Can You Use a Trademark That Has Been Rejected by the USPTO?

Question: Can you use a trademark that has been rejected by the USPTO?

Answer: Yes. If your trademark has been refused by the USPTO, you can still use it in the marketplace.

However, if it was refused because the government considered it to be too similar to another mark, then it’s important to study the judgement carefully before continuing to use the trademark in commerce.

A major concern with a refusal of this nature is that the company with the similar mark could eventually see your filing or use of the trademark in the marketplace and send you a cease-and-desist letter, or worse, sue you in federal court.

On the other hand, just because the government told you the trademarks are similar, it doesn’t necessarily mean that the other company, or even a court, would think they are alike.

Refusals are based on the judgement call of a single examiner, so decisions are largely based on individual interpretations of trademark law. It doesn’t necessarily mean that you have absolutely no protection in a trademark if you receive a refusal. In fact, if you disagree with a decision, you can even appeal it with the USPTO.

While you can ultimately use your trademark despite a refusal, it’s important to carefully evaluate whether or not you should. Our firm provides assistance when dealing with refusals issued by the USPTO and can provide legal advice on how to best proceed with your branding.

If you have any questions about your refusal or if you are considering appealing a decision, please contact one of our attorneys today.

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Josh Gerben, Esq.

Josh Gerben, Esq. is a nationally recognized trademark attorney and the founder of Gerben IP. Since launching the firm in 2008, he has overseen the registration of over 10,000 trademarks and handled over 1,500 trademark disputes. Josh's practice focuses on building and defending global trademark portfolios for clients. These clients include entrepreneurs, private equity-backed businesses, athletes, celebrities, and public companies. Frequently quoted by major media outlets like CNBC, CNN, The New York Times, and The Wall Street Journal, Josh is widely regarded as a leading authority in trademark law.