Introduction
Registering a trademark provides businesses with exclusive rights to use their brand name, logo, or slogan within a specific industry. However, trademark ownership is not absolute or permanent. There are several situations where a company or individual can lose the rights to a registered trademark.
Losing a trademark can result in business disruptions, financial losses, and legal complications. To avoid this risk, trademark owners must understand the circumstances that can lead to the loss of rights and how to protect their brand effectively.
This article explores the main reasons a trademark owner can lose their rights, what happens when a trademark is canceled or revoked, and how to prevent the loss of trademark protection.
How Can a Business Lose a Registered Trademark?
A registered trademark can be lost due to expiration, improper use, legal challenges, or failure to defend the brand. Below are the key situations that can lead to the loss of a trademark.
1. Failure to Renew the Trademark
A trademark is not permanent—it must be renewed every 10 years with the National Institute of Industrial Property (INPI – Instituto Nacional da Propriedade Industrial) in Brazil.
❌ What happens if a trademark is not renewed?
- The trademark expires and is removed from INPI’s database.
- The owner loses exclusive rights to use the trademark.
- Competitors can register the same or a similar brand name.
✅ How to avoid it?
- Track renewal deadlines and set reminders.
- File the renewal application up to 1 year before expiration.
- INPI allows a 6-month grace period after expiration, but with extra fees.
2. Trademark Abandonment (Non-Use of the Brand)
A trademark must be actively used in commerce. If a business stops using a registered trademark for an extended period, it can be considered abandoned and canceled.
📌 Legal rule in Brazil:
- A trademark must be used continuously.
- If a trademark is not used for 5 consecutive years, a third party can file for cancellation.
✅ How to avoid it?
- Ensure the trademark is actively used in branding, marketing, and sales.
- Keep proof of commercial use, such as advertisements, invoices, and product packaging.
3. Genericization – When a Trademark Becomes Too Common
Some trademarks lose protection because they become generic terms used to describe an entire category of products.
✅ Examples of Trademarks That Became Generic:
- Aspirin (originally a brand, now a general term for painkillers)
- Escalator (once a trademark, now a generic term for moving stairs)
- Xerox (at risk of becoming generic for photocopying)
❌ What happens if a trademark becomes generic?
- The trademark loses exclusivity and enters the public domain.
- Other companies can legally use the name.
✅ How to avoid it?
- Always use the trademark correctly in marketing.
- Avoid using the brand as a common noun (e.g., say “a Xerox copier,” not “a xerox”).
- Monitor how customers and competitors use the name.
4. Legal Cancellation Due to Third-Party Claims
A trademark can be canceled if another party successfully proves that:
- The trademark was registered in bad faith.
- The trademark was too similar to an existing brand.
- The trademark violates legal regulations (e.g., offensive terms or misleading names).
❌ What happens if a trademark is canceled?
- The owner loses all rights to the brand.
- The trademark becomes available for others to register.
- Legal battles can lead to high costs and business disruptions.
✅ How to avoid it?
- Conduct a thorough trademark search before registering.
- Ensure the brand name is unique and legally compliant.
- Defend the trademark if a third party files an opposition.
5. Losing Trademark Rights Due to Lack of Enforcement
Trademark owners must actively protect their brand. If they allow competitors to use a similar brand name or logo without taking legal action, they risk losing exclusivity.
❌ What happens if a trademark is not defended?
- The trademark may lose distinctiveness.
- Competitors can argue that the owner did not enforce their rights, leading to cancellation.
✅ How to avoid it?
- Monitor the market and competitors for unauthorized use.
- Send cease-and-desist letters to businesses infringing on the trademark.
- Take legal action if necessary to protect brand exclusivity.
What Happens After Losing a Trademark?
If a trademark is canceled, expired, or revoked, the business may face several consequences:
1. Competitors Can Register the Trademark
Once a trademark is lost, it becomes available for new registration. A competitor can legally claim the brand name, which may force the original owner to stop using it.
2. Businesses May Be Forced to Rebrand
Without a trademark, companies may need to change their name, logo, and branding materials, leading to:
- High costs for new branding and marketing.
- Loss of brand recognition and customer trust.
- Legal disputes over ownership of the brand identity.
3. Risk of Trademark Infringement Lawsuits
If a business continues using a trademark after losing rights, the new owner can sue for trademark infringement. This can lead to:
- Legal penalties and fines.
- A court order to stop using the brand.
- Additional costs in legal fees and settlements.
How to Prevent Losing a Trademark
To ensure long-term trademark protection, businesses should:
✔ Renew the trademark on time (every 10 years). ✔ Use the trademark continuously in commerce. ✔ Monitor the market to prevent unauthorized use. ✔ Enforce trademark rights against infringement. ✔ Consult a trademark attorney for legal protection strategies.
By taking proactive measures, companies can secure their brand identity, avoid legal risks, and maintain market exclusivity.
Conclusion
Yes, it is possible to lose the rights to a registered trademark due to expiration, non-use, genericization, legal claims, or failure to defend the brand. Once lost, businesses may face competitor takeovers, rebranding costs, and legal disputes.
To prevent trademark loss, businesses must renew registrations, use trademarks correctly, monitor competitors, and enforce their legal rights. By taking these steps, brands can ensure long-term protection and market exclusivity, safeguarding their reputation and commercial value.
