It is that time of year again, when things go bump in the night, indeed as the night draws in and it grows darker. Things are getting a little spookier here at Albright IP headquarters.
Nothing is quite as spooky as nipping down into the depths of County House, on a late evening, guided only by my trusted candlestick searching for a renewal file or perhaps just some spare stationary (OK, we have electricity, but this is meant to be a ghost story).
When, I return to my desk, I can hear the wind rustle through the trees, the building creek and the hoot of a friendly owl. Undoubtedly, the creepy surroundings have got me thinking. You see theoretically, all trademarks are immortal or at least perpetually renewable, in that as long as a trademark is renewed every 10 years, it can last into perpetuity. Indeed, the oldest UK trademark ‘Registration No. 1’ for Bass Brewery, is now 141 years old. However, in practice, trademarks often have a limited lifespan, they are born and they die.
This thought conjures an image to my head of a vast trademark graveyard, a place where trademarks, when they have been abandoned and lived out their usefulness, come to rest. Perhaps, it is the fate of good Trade Mark Attorneys, to one day (although hopefully in the far future) keep watch over this afterlife for trademarks? Nevertheless, the disconcerting thing is, trademarks unlike people (I hope!) sometimes come back.
‘Zombie trademarks’, as they may be referred to, are a growing phenomenon. Since, reviving an expired trademark represents a number of advantages over starting the registration process all over again.
The most human-like advantage of the ‘Zombie trademark’ is that they can elicit feelings of nostalgia and a deep emotional connection with the consumer. In many cases these trademarks are iconic, and accordingly the brand image that they create, may have some residual reputation. This reputation or residual goodwill, means that an abandoned trademark may have considerable marketing potential, giving the holder the opportunity to save time and money which would otherwise have to be spent in creating the reputation associated with a new Mark. The adoption of a ‘Zombie trademark’ can represent less of a commercial risk for the owner, than a re-brand.
The ‘reviver’ of defunct or dead trademarks may take many guises. Sometimes, they will be the original right holder; however, more often than not, start-ups with little or no relation to the defunct brand, will attempt to obtain the associated rights, especially the ‘Zombie trademark’. For either of these profiles, the process of reviving a dead trademark can be problematic, but not insurmountable. A possible issue is that whilst a trademark may be long dead, other associated Intellectual Property rights may still be very much alive. It is important to remember that there may be residual copyright, or a valid passing off right enduring within, and surrounding the brand. The situation is further exasperated by the fact that as time goes on, a veil of uncertainty can manifest around who retains or who acquires a valid interest in an otherwise deceased brand.
‘Zombie trademarks’ represent a significant commercial advantage to those wishing to exploit the ever-continuing vintage trend, which is currently captivating consumers worldwide. However, there exist several substantial risks in trying to capitalise on this grave yard of goodwill. It is strongly recommended that anyone considering reviving a lapsed trademark or a ‘dead brand’, seek out the services of an experienced Trade Mark attorney, in order that the appropriate checks and searches can be conducted. We wouldn’t want you getting bitten by a deceased trademark which isn’t as dead as you thought!
Here at Albright IP, we have a very experienced trademark team, who can help you avoid a nasty fright, when it comes to reviving the elusive ‘Zombie trademark’. Happy Halloween…
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