Can I use a cancelled trademark if the owner is still manufacturing the product?
<p>I recently stumbled upon a product patented in the 1950's--let's say it's a beard comb called the "Drongle"</p>

<p>After the patent expired, another company trademarked "Drongle" in 2006 and began selling the beard combs.</p>

<p>In 2013, the new manufacturer's "Drongle" trademark was cancelled--although they still manufacture and market their beard combs under the same name.</p>

<p>Two questions:</p>

<p>*Is it permissable to manufacture beard combs and market them under the "Drongle" name?</p>

<p>*If so, should I file for a trademark on the name "Drongle?"</p>

<p>Registered Trade Marks aren't the only form of trade mark protection. You also have the law of unregistered trade marks.</p>

<p>Basically (and this is an over-simplification), it works like this:</p>

<ol>
<li>a business starts using a trade mark for a specified product: beard comb. Let's say that they don't even register a trade mark.</li>
<li>they start selling load and loads (thinks 100s of thousands of $ or £ worth)</li>
<li>they become well-known in that market segment. They accrue "goodwill" in the (unregistered) trade mark. </li>
<li>That trade mark is protectable in law. </li>
</ol>

<p>That's a summary of the law of passing off aka the law of unregistered trade marks.</p>

<p>So, if the new manufacturer is still manufacturing them in the country that you want to sell them in, you'll probably have a problem. This assumes that that country has an equivalent of the law of passing off.</p>

<p>The tip then has to be - check to see if the manufacturer is still selling them.</p>

<p>If you think it's a good business opportunity and worth a small amount of risk capital - a few hundred $ or £, file the trade mark application is see if anyone does anything about it. You can always withdraw it and avoid a dispute.</p>

<p>You might also do a search for registered design rights. They protect the shape of the products (not what it's called - which is what a trade mark does). </p>

trademark