Dead Today, Filed Tomorrow: Understanding “Dead” Trademarks
- Vrinda Harmilapi
- 2 hours ago
- 5 min read
When Reliance Industries Limited acquired Campa Cola, it did not just bring back the nostalgic beverage into the market but also revived a dead trademark. In today’s brand-driven economy, trademarks have become one of the most valuable business assets. Yet, merely registering or renewing a trademark is not enough to keep it legally “alive”. A trademark, for reasons discussed in this article, can become dead. While these terms do not appear in the Trade Marks Act, 1999, they have become convenient shorthand for describing the legal status of a mark. This article delves into the concept of dead trademarks under Indian law, the conditions under which marks fall off the register, and the opportunities and risks they bring for businesses.
Meaning: Dead Trademark and its Origin
A “dead” or abandoned trademark is one that is no longer recognised as an active application or registration by the Trade Marks Registry.[1] The term itself gained popularity in the United States, where the USPTO explicitly labels trademarks as “live” or “dead”. Over time, this terminology has found itself in discussions in India as well.
How and why Trademarks become “Dead” in India
Failure to Renew
In India, a registered trademark is valid for ten-years and has to be periodically renewed as per the provisions of Section 25(1) of the Act. However, the Registrar may remove the trademark from the register if the proprietor does not renew its mark within the one-year extended period from the date of expiration of the last registration.
Abandonment of Application During Prosecution
An application may be treated as abandoned if the Applicant:
fails to respond to an Examination Report within the prescribed time
fails to appear at a hearing appointed during the Examination and/ or Opposition stage
fails to file a Counter Statement in response to an Opposition within the prescribed two- month period
takes no action in regard to Evidence in support of application (Rule 46) within the stipulated time frame of two months on the receipt of affidavits in support of Opposition.
Voluntary Abandonment or Withdrawal
A proprietor may voluntarily abandon or withdraw its application by submitting the appropriate request with the IPO.
Removal Through Cancellation or Rectification
A trademark may be removed from the Register if a third party succeeds in a cancellation/rectification petition:
Section 47(1)(a) allows cancellation/rectification for trademark which was registered without a bona fide intention to use and has not been used up to three months before the date of the cancellation application, or where the trademark has not been used for a continuous period of five years after registration.
Section 57 allows rectification on wider grounds, such as error in registration or bad faith on part of the Applicant.
But, the question remains, is a trademark really ever dead that it loses its legal significance?
Even after a trademark is removed from the Register, it may continue to have legal significance. Indian trademark law draws a sharp distinction between statutory rights and use-based rights. Therefore, even if a registration of a mark lapses, rights arising from any use of the same, may survive. Section 27(2) of the Act allows the proprietors the remedy of passing off, which protects their goodwill which was built through use and promotion of a mark. Thus, a dead trademark may still be legally enforceable if the proprietor continues to use it.
Further, under Section 25(4), a trademark removed for non-renewal may be restored if the proprietor applies within one year of expiration and pays the prescribed restoration and renewal fees. During this window, the mark exists in a state of legal limbo, removed, but not irretrievable. Although, once a trademark is fully dead, a third party may apply for it, provided they establish the bona fide use of the mark or a genuine intention to use the same.
What's in it for businesses?
From a commercial standpoint, adopting a dead trademark can present significant opportunities, but also corresponding risks. For businesses, dead trademarks are tempting assets. Some abandoned marks may still linger in the public memory, or evoke a sense of familiarity, and tap into nostalgia and trust.[2] As a result, such adoption/revival of marks can provide an immediate identity and faster market acceptance.[3] An example wherein the revival of a brand resulted in success for the new proprietor is that of Balenciaga, wherein the brand had been inactive for nearly two decades before being revived as a new renowned luxury brand. Its readoption serves as an example of how a mark, if strategically adopted can be advantageous.[4] A similar Indian example is Reliance Retail Limited (RIL)'s restoration of the Campa Cola trademark. Campa Cola, which was once a major Indian soft drink brand in the 1970s and 1980s, had for decades been commercially dormant. Strategically, RIL acquired the rights in Campa Cola and reintroduced it into the market in a way to capitalize on the Consumer's nostalgic goodwill. The acquisition of the Campa Cola trademark enabled RIL to bypass the initial investment and market-entry barriers typically involved in developing a new brand.[5]
However, such revival requires caution and must be done after conducting a due diligence to confirm whether the trademark is truly abandoned legally. As already discussed, the original proprietor of the trademark may still possess common law rights, and passing off remains a real risk, if any goodwill continues to subsist. One such example is the dispute between X Corp. and Operation Bluebird in the United States. Operation Bluebird sought the cancellation of X Corp.'s “Twitter” trademarks, claiming that Twitter’s rebranding to “X” constituted desertion. X Corp., on the other hand, had disputed this allegation, stating that rebranding does not invalidate trademark rights if residual goodwill, consumer association, and continuous use, such as access through the domain, <twitter.com> exists. The issue demonstrates that the apparent dormancy of a mark does not always mean legal abandonment, and third-party resuscitation attempts may nevertheless result in infringement or passing off claims.[6]
Conclusion
While a dead trademark loses statutory exclusivity, it may continue to be protected through use-based rights, including passing-off remedies. For businesses, dead trademarks offer both opportunities and risks, promising a potential shortcut to brand equity while requiring careful due diligence on past use, goodwill, and legal vulnerabilities. Ultimately, the phenomenon reinforces a fundamental principle of Indian trademark law: rights arise from use, and non-use gradually returns a mark to the public domain, where it may be forgotten, contested, or revived with new purpose.
Vrinda Harmilapi
Associate
REFERENCES
[3] Ibid
[4] https://www.barandbench.com/view-point/back-from-the-dead-is-it-lawful-to-revive-lapsed-or-dormant-well-known-trademarks
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