Selling a product after the trademark expired

[doogie88]

Is it legal for me to register the trademark of an expired (Dead) trademark product under my company? More importantly, the product was a drug name, and I'd like to sell it under a supplement name.
ie say Viagra trademark expired, and I want to sell a herbal supplement under the name Viagra.

Question 2, I did a few trademark searches, and I see some expired in less than a year, why could that be?

 

[FlyingRon]

Just because they failed to renew the registration doesn't mean they don't still have common law trademark rights. Are they still selling a product under that name?

Further, you may open yourself up to a lot of scrutiny from the FDA if you even use a completely dead name of a former drug to market your non-approved concoction.

 

[doogie88]

They are not selling the product anymore, and I don't think they have for a few years.

 

[quincy]

First, trademarks do not have to be registered to be offered protection under state and federal trademark laws so, even if a mark is not registered, it does not mean the trademark is not being used.

You can check out the Lanham Act's (15 US Code) section 1127 to read about abandonment of a mark.

A mark may not be abandonned even if it is not currently being used on a product. A company who owns the trademark may be making product revisions or may be experiencing financial problems (ie. bankruptcy) which is putting a temporary halt on production.

In addition, old products bearing the trademark may still be in the marketplace and your use of this "abandonned" mark may lead to consumer confusion which could result in an infringement action.

I agree with FlyingRon that using a "drug name" adds to the legal complications you may face.

Unless you have a legitimate reason for using this particular trademark, I suggest you find a unique trademark of your own to identify your product. And you would be wise to review all of the particulars of your situation with an IP attorney in your area, before investing a lot of time, energy and money into your venture, to help you avoid as much as possible all legal risks.

Good luck.

 

[doogie88]

Thanks for the reply.
If a trademark (with WIPO)is not being sold in North America, and does not have a trademark in the US, is it okay to use the trademark in North America?

 

[quincy]

It depends.

The Lanham Act and international treaties allow for trademark holders in other countries to assert trademark rights in the U.S., even if they have not registered their mark in the U.S.

I suggest that you sit down with an IP attorney and review with the attorney the marks you are contemplating using. It is always wisest, as I said before, to create your own unique trademark for your product or service.

Your questions seem to indicate a desire to use another's mark to identify your product or service. This makes me think that you are trying to capitalize on the reputation of an already established name. This is a legal risk and one I would not take, certainly not before a review by an IP attorney in your area.