Can I Resell Merchandise from an Old Sports Team?

Question: I want to sell flags featuring an old logo of a Major League Sports conference. I looked up the trademark, and it says it’s dead and canceled. If I sell the logo, will they come after me? Should I try to buy the trademark?

Answer: You can’t buy a dead trademark. If the registration is no longer live, it’s dead, abandoned, or canceled. However, you might be able to buy common law or unregistered rights in that particular logo.

If someone wants to sell flags using that old logo, it’s a tricky situation. I have filed trademarks for clients who were not affiliated with an old brand that had been long dead and unused, and we’ve had success with that. However, if the trademark is still being used somewhere, you run the risk of getting a cease-and-desist order or opposition from the previous trademark owner.

Generally speaking, if a trademark is unused for five years with no intention of being used again, it is considered abandoned, and anyone can pick it up and use it. However, this is sometimes tested in practice.

For example, if Bold Patents shut down today, someone could potentially sell Bold Patents mugs five years from now, if not sooner. It depends on the type of business. In the legal profession, a solo practitioner taking a few months off doesn’t constitute trademark abandonment. But if you post on social media that you’re closing your shop permanently, that’s an express abandonment of your trademark rights.

There’s a story about the artist formerly known as Prince. He expressly abandoned his trademark, saying he was no longer Prince but the artist formerly known as Prince. Someone picked up that trademark application right away, and then there was a fight over it afterward. So, avoid expressly abandoning trademarks if you intend to use them again in the future.