A trademark can reach the state of “dead” in a variety of ways:
- The registered trademark has been cancelled by a third party within the trademark system.
- The registered trademark was not renewed within the required time period.
- The pending trademark had activity not answered within the required time period, or loses its arguments against rejection.
In some cases, a Petition to the trademark office can be submitted, always with additional fees and often with increased risk, because your brand name is vulnerable when it bears the “dead” designation in the trademark office database.
Therefore, it is possible that a trademark showing a status of “dead” when you do the search, could still end up being “live” and registered only months (or years) later when your trademark application has its first review, which could cause your application problems. Of course it is impossible to know which trademark owner might take the additional step of filing a Petition, and which will not.
There is a more direct and useful use for dead trademarks, however, and that is to discern patterns at the trademark office.
Let’s take the term “realtor” in USA. A direct hit search brings up 135 “live” trademarks...about 30% of which are pending. Without going into each record individually, this tells us very little. However, just by changing the formula to show “dead” marks instead, 483 trademarks show up, most of them “dead” without achieving registration. This search tells us a great deal.
By looking at the office actions of only 3 recent rejections, one can easily see that there is a pattern by the trademark office to reject new filings with the term “realtor”. Further research shows that there is also a pattern of opposition filing (and winning), if indeed the trademark makes it past the first review.
I specifically use the USPTO as an example, because it is possible to see both office actions and oppositions filed. However, I use the strategy of searching dead trademarks whenever that information is available from the trademark office.
NOTE--I would like to mention the EU, where no first review rejection process exists, that the “dead” trademarks and oppositions filed against them, to be an essential part of well performed search.