A Lapsed Trademark Registration Doesn’t Always Mean the Brand is Up for Grabs

Short summary

A lapsed federal trademark registration doesn't automatically free a mark for others to adopt. The Nike v. Total90 LLC decision clarifies that true abandonment requires both complete non-use and demonstrable intent never to resume—limited use or revival plans can preserve rights. Brand owners should maintain records of all usage and document intent to restart dormant marks.

• •Lapsed registration alone doesn't make a trademark available; abandonment requires both proven non-use and intent not to resume
• •Nike won against Total90 LLC by demonstrating continued limited use and plans to revive the TOTAL 90 brand
• •Brand owners should document all usage, licensing, and resurrection plans to protect rights; later adopters must prove true abandonment

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