PictureThe trademark train that almost left the station.
Let me just provide this disclaimer up front: this post is not going to be a shameless self-plug or soap box speech about how lawyers are the greatest thing since sliced bread. Its not going to be entirely like that, I should say.

A few weeks ago, the New Jersey Transportation authority nearly found themselves in a pickle when they noticed that trademarks for important insignia were abandoned for good. Apparently, a trademark attorney that had been obtained by the transportation authority forgot to renew the trademark registrations before the deadline, requiring the transit authority to file new trademark applications for 7 of the transit authority’s marks. The cause for the lapse? It looks like a former attorney for the transit authority had a brain freeze and told the authority that its trademark registrations were actually good through 2018. The problem is that trademarks are only good for 10 years (with action required by the trademark at both the 5- and 10-year anniversaries of the registration), and the trademarks at issue were registered (mostly) around June 2002. Doing the math 2002 + 10 = 2012. So renewal of the marks was required in 2012, not 2018. Perhaps the lawyer for NJ Transit was confused by the effect of the 5-year renewal (which was filed timely in 2008) and believed that this filing extended the deadline 10 years. Who knows.  


So what are the practical consequences for NJ Transit? While it missed the chance to renew its trademarks, it can still claim priority back to its first use date (which was around 1980 for most of the marks at issue). If NJ Transit was indeed using the mark each year during that 34-year period, then it can claim the benefit of the 1980 date. So practically, its like the trademark renewal was never missed.

Or is it? When a trademark is filed, it has to through a series of steps in the USPTO.  There’s the initial examination, where the examining attorney reviews an as-filed application and runs it through the gamut of statutory requirements, including the venerable and much-feared likelihood of confusion analysis. The likelihood of confusion analysis includes a consideration of all trademark registrations and applications on-file with the USPTO. 

Picture
Nice chart courtesy of Northjersey.com.
If there was an identical or similar trademark on the books at the USPTO (or one was filed after NJ Transit filed applications for its abandoned marks), NJ Transit would find itself having to file an opposition. Opposition proceedings are administrative proceedings overseen by the United States Trademark and Copyright Office, where a party thinks it may be damaged by the registration of a trademark, it can file an opposition. The practical impact of an opposition is that the trademark will not be registered until there is an outcome in the opposition proceeding. Oppositions can be filed for any number of reasons, but the most common reason is that the applied-for mark is confusingly similar with the opposers trademark (whether registered or unregistered). If the opposers trademark is not registered, the opposer must show that it had established common-law rights to the trademark by virtue of earlier use. So in this case, so long as NJ Transit can show use of the trademarks dating back to 1980, they should be successful.

The chances of someone else attempting to capitalize on a long-standing trademark are probably pretty slim. It is embarrassing for NJ Transit nevertheless. How could an organization owned by a state government neglect an activity so routine? Even assuming the error was not one of neglect but simple confusion regarding the relevant dates, this is still a black eye for the state corporation. Private companies have a lot riding on their brands, namely, millions (or billions) of dollars worth of goodwill, licensing relationships, and the overall corporate image. Neglecting such mundane activities as re-registration can cost a company more in legal and filing fees, but the damage done to the company’s reputation (especially if it has to fight a protracted legal battle in an opposition proceeding) can be far worse. Attorneys may not be required in order to file a trademark application, but they sure can save you a lot of embarrassment from missing key deadlines. This is especially true if you have a trademark portfolio with more than a handful of trademarks (ahem NJ Transit, I’m looking at you).

So you may need a lawyer to help you track the progression of your trademarks. Not only that, you need a GOOD lawyer.
 


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