Halloween is celebrated by many children, and grown-ups alike, having fun dressing up and 'trick or treating' in exchange for sweet offerings. Many will dress up in scary costumes such as Witches, Ghosts or Zombies. But what do zombies have to do with trade marks, you may ask? Well, a ‘zombie trade mark’ is a specific term in IP.
Zombie trade marks are trade marks which are long dead, abandoned or in the name of a business which no longer actively trades. The impact of the ongoing COVID pandemic not only means that many businesses have unfortunately closed their doors to trade, but also maintenance of their trade marks.
Do you awake the dead?
Although zombies/the undead may be scary, the same cannot be said about zombie trade marks if proper consideration is given to them. Zombie trade marks can be a great choice, particularly when considering how cluttered the trade mark registers are.
However, before embarking on revival, conduct your due diligence and satisfy yourself that the mark is truly dead and abandoned by its owner. Before taking advantage of zombie trade marks, you should consider the below so you are not surprised and bitten:
- Is the mark still registered?
- Are there unregistered rights or copyright attached to the mark?
- Does the owner of the mark still exist – is it still trading or has it changed its name?
- Check ownership of the mark and any possible change of ownership - of course if an assignment / licence has not been filed, it will be difficult (if not impossible) to find.
- Are there any unregistered rights still attached to zombie mark?
- Does the mark still have goodwill, even if this is residual?
- Are there any other earlier marks that may conflict with the mark if revived?
It is important to consider any potential issues before you re-launch a dead brand so you are not caught in costly battle with third parties claiming ownership of the zombie trade mark because, once bitten, the bite will be quite painful on your finances.
Careful consideration/checks are a must in the current climate as some marks/companies might not be dead but merely sleeping!
Howl if you have any questions or are interested in an old brand that you would like to revive.