Mark abandonment

Originally published by David Coale.

A trademark-user who establishes prior use of the mark can still lose his rights to it if he abandoned them. “A party trying to show abandonment must prove that the owner of the mark both discontinued use of it and that he did not intend to resume its use in the reasonably foreseeable future. Nonuse of a mark for a period of three consecutive years creates a rebuttable presumption that a mark has been abandoned without intent to resume its use.” (citation omitted).

In King Aerospace, Inc. v. King Aviation Dallas, the appellee contended that the relevant mark was abandoned after the appellant had a serious accident. “KAC contends it made a prima facie case of abandonment because Randall admitted he did not make any aircraft sales from 1993 until at least 2000. Although Randall testified he did not personally sell any aircraft while he was recovering from his near-fatal accident, he also testified his father, Sam, was conducting the business of the company during that time. Jordan testified that, while Randall was recovering, he helped Sam file monthly reports identifying what airplanes they owned, when they bought them, and when they sold them.” This evidence established use and defeated the intent requirement: “The fact that Sam continued the business of the company, and Randall resumed selling planes using the names King Aviation and King Aviation Dallas as soon as he was able to do so, is evidence of his intent to resume use of the marks.”  No. 05-19-00245-CV (April 30, 2020) (mem. op.).

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