CAN I BUY A TRADEMARK?
A U.S. federal trademark registration is essential for building a successful business nationwide. But the actual process of registering a trademark is lengthy and complicated. Which is why it may seem like a good idea to take a shortcut and simply buy someone else’s registered trademark instead. Especially since it is fairly easy to find all kinds of trademarks for sale on the Internet these days. You can even find specialized “marketplaces” for buying and selling trademarks. But is buying a trademark really such a good idea? The answer is not that simple.
Unlike buying your new off-the-rack suit, you cannot simply purchase a trademark and start using it. There is much more to the process, since trademarks are always tied to a product’s qualities and consumers’ expectations. A trademark’s main purpose is to indicate to consumers that a particular product comes from a specific source and therefore has certain qualities. Apart from being such an indicator of a product’s source, a trademark has no real independent value.
Which is why the law requires that any sale or other transfer of a trademark includes all of the underlying formulas, technologies, equipment, quality control protocols, and whatever else may be necessary to ensure that the new trademark owner can continue to meet consumers’ expectations. Any attempt to sell or otherwise transfer a “naked” trademark, without the accompanying manufacturing assets, is typically void.
But then there is a question as to whether you can avoid any need to buy manufacturing assets by purchasing a trademark that has not been used in commerce yet. After all, it may seem logical that if a trademark is not used in commerce, then there should not be any manufacturing assets to worry about. The answer to that question is simple and unambiguous – you cannot buy a trademark from an unrelated party until that trademark is used in commerce. Any attempts to buy or sell unused trademarks are referred to as “trafficking in trademarks” and are prohibited by law.
At the same time, the rule about including all accompanying assets within a trademark sale has certain practical exceptions. One such exception is when you want to buy a third party’s trademark as a purely legal maneuver, without intending to actually use the purchased trademark in commerce.
For instance, whenever the U.S. Patent and Trademark Office mentions a third party’s trademark registration as an obstacle to your own attempt to register the same (or similar) mark, one possible legal maneuver is to buy the cited trademark, without actually buying any equipment or other assets (since the only goal of such a tactic is to make the owner of the cited registrations give up all rights to its trademark). Under this scenario, the cited registration gets transferred to you, thus eliminating the obstacle to your own mark’s registration. But any such maneuvering requires a great deal of skill and experience, to ensure full compliance with the law. And you still need to meet certain other formalities, such a proper assignment agreement and recordation with the Trademark Office.
So to answer the original question, yes, you technically can buy a third party’s trademark. But there are multiple rules and regulations that must be strictly followed, unless you want to spend money on something that will end up being completely worthless.