Fashion from the early 2000s is undoubtedly back. Low-rise jeans, layered tank tops, and platform sandals are everywhere again, but this Y2K revival is not limited to the styles – stores are once again carrying classic Y2K brands like True Religion, Von Dutch, and Juicy Couture.
The Y2K brand revival raises an interesting trademark question: how can a brand seemingly disappear for years and then suddenly come back?
When fashion shifted away from the original Y2K aesthetic, demand for many of these brands diminished substantially. Some became much smaller businesses, while others moved into different distribution channels, changed ownership, or licensed their names to other companies. Some brands don’t make it, and fell by the wayside.
How they come back depends on what happened to them. Trademark rights in the United States are tied to use in commerce. As long as the trademark continues to be used in bona fide commerce, trademark rights can potentially continue indefinitely. A company does not need to remain enormously successful, or even particularly visible, to maintain those rights, just “use in commerce” does the trick. Even that, though, can prove challenging.
1. Downsize and Keep Using the Trademark
A company can reduce its operations while continuing to use its trademark on at least some of its products. While they may eventually lose rights connected to goods it has genuinely stopped selling, the continued bona fide use of the trademark on its remaining products can preserve trademark rights for those goods. This can hold the trademark in place and still help to combat any related or similar use.
2. Licensing
A company does not need to be the one physically selling products in order to maintain trademark right. It can license the mark to others, and those licenses can create the commerce use that keeps the trademark alive. In many cases, that is exactly what happens when a brand’s original business model fades. This is a reminder that the trademark itself is an asset.
3. The “Zombie Trademark” Brand Revival
A very different type of brand revival occurs when the original company actually shuts down and the trademark is abandoned. Under U.S. trademark law, three consecutive years of nonuse can create a presumption of abandonment, although abandonment ultimately depends on discontinued use and intent not to resume use. In many jurisdictions, similar rules apply.
If trademark rights truly have been abandoned, another company may eventually adopt the old name and build a new business around it. These revived marks are sometimes called “zombie trademarks.” Famous zombie trademarks include
Brand Revival and the Value of Trademark Rights
The current Y2K brand revival is a useful reminder of how long trademark rights can last. The brand you remember from a particular moment in time may therefore still exist as a valuable piece of intellectual property, even if you have not seen it in years. That is part of what makes trademarks unusual business assets. They can survive changes in popularity, distribution, ownership, and even the underlying business itself.
This article provides general information about U.S. trademark law and is not legal advice. The application of the law depends heavily on the fact of your case.
Stemer Law (Stemer, P.A.) is a Denver trademark law firm serving clients across the U.S. and abroad. With 1,000+ trademarks filed, we make brand protection simple, affordable, and effective. To speak with a trademark attorney contact us at hello@stemerlaw.com or (303) 928-1094.
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