united-states trademark patents
If Two Different Companies Have Sold the Same Product Under the Same Name, Is Trademarked Name Enforceable?
<p>I'd like to manufacture a product, but I'm curious about my naming options.</p>

<p>Here's my scenario in a nutshell:</p>

<p>In 1960, a company patents a wallet design and sells them as Zark wallets.</p>

<p>In 2006--after the patent expires--another company trademarks the term "Zark" and begins manufacturing the same wallet design.</p>

<p>In 2013, the trademark for "The Zark" is cancelled because the second company failed to renew their registration--even though they still manufacture and sell the product.</p>

<p>Here are my question:</p>

<p>If I manufacture wallets with the same design and call them Zark wallets, am I infringing on the rights of the first company, the second company, both, or neither?</p>

<p>Trademarks in the US exist and are defensible without being registered. If you use the trademark in a way that will cause confusion between your product and theirs (which for identical products is inevitable) you are infringing the second company’s trademark.</p>

<p>Because the patent has expired you can make the wallets and call them something else. Or you can make computer games, or a breed of rose, or an accounting firm and call it ‘Zark’ because they can’t be confused with wallets; you probably can’t make watches, or purses, or other fashion accessories as they can be confused.</p>

<p>To Clarify @Dale M's correct answer on an issue the question asked about, selling such wallets under the "Zark" name (without permission) would infringe the rights of the company <strong>currently</strong> selling such wallets. If the company were not actually selling such goods (and had not been for a while) and had no registered trademark, there would be no rights to protect.</p>

<p>Note that in a country that did not protect unregistered trademarks, the answer would be different.</p>
