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.

Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.

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