Can You Lose Your Trademark by Not Using It?

A New York Guide to Trademark Abandonment and Use Requirements

After all the work it takes to build a brand, the last thing you want is to lose your rights to it. Trademarks are valuable business tools, especially in New York where competition is fierce and branding sets you apart. But owning a trademark isn’t just about filing paperwork. If you don’t use it, you can lose it. That’s a legal reality. The clock starts ticking the moment you stop using your mark.

At Horn Wright, LLP, we help New York businesses protect what they’ve built. If you’re unsure whether your trademark is still secure, or if you’ve stopped using it for a while, our intellectual property attorneys can review your situation and help you move forward with confidence.

Understand What Gives a Trademark Legal Strength in New York

In New York State, a trademark earns its strength through real, visible use. This means showing up in commerce, on your products, in your packaging, and in the way your business reaches customers. Registration matters, but it’s not the full picture. What truly protects your mark is consistent, active use that connects your brand to your goods or services.

Let’s say you operate a custom clothing shop in Rochester or a gourmet food company in the Hudson Valley. If your logo appears on product tags or local ads, that counts as commercial use. That real-world presence gives your trademark legal weight. Without it, your rights weaken.

Trademark law in New York recognizes these use-based rights even if you never registered your mark with the U.S. Patent and Trademark Office (USPTO). But if you stop using the mark, even for a while, those rights begin to erode.

Know What Counts as ‘Use’ Under New York and Federal Law

Using a trademark means more than having a logo or name tucked away in a drawer. Both federal and New York trademark law require that you put your mark into public view, connected directly to your business activity. This is especially important in New York, where markets are saturated and timing matters.

To qualify as “use in commerce,” your trademark must:

• Appear on the product itself or its packaging
• Show up in digital or print advertising clearly linked to what you’re selling
• Be displayed on your website where customers in New York can purchase goods or services

This use must be genuine. Internal company memos or unused inventory marked with your logo won’t be enough. Courts look for public-facing use aimed at buyers.

If your Buffalo-based business sells artisan soaps, but you haven’t had a product for sale in over a year, you may already be drifting into dangerous territory. That gap in use could put your trademark rights at risk. For detailed guidance on how to show trademark use the right way, it’s important to understand the expectations set by both federal and state laws. 

Learn What Happens When You Stop Using Your Trademark

Trademarks depend on use. Under both federal law and in New York courts, a trademark is presumed abandoned after three consecutive years of non-use. That signals the mark no longer identifies your business.

If you stop using it, others can step in, register it, and use it. Your legal protection disappears.

Even before those three years pass, you may face legal challenges. To avoid losing rights, stay active and keep your registration alive through consistent use and timely filings. 

Explore How Intent Affects Trademark Abandonment

Intent matters, but only when you can prove it. If you’ve stopped using a trademark but still plan to bring it back, you need evidence. Without clear signs that you’re actively preparing for re-use, courts may assume you abandoned it.

What helps preserve your intent?

• Archived marketing materials with updated dates
• Internal emails showing plans to resume use
• Vendor contracts showing future orders
• Website content in draft awaiting launch

If a boutique in Manhattan temporarily closes for renovations and plans to re-open under the same name, documenting their marketing relaunch and redesign plans improves their chances of protecting the mark. But if they go silent and show no forward motion, even a year or two could put their brand at risk.

New York courts won’t rely on vague statements. They want proof of your intent tied to real steps.

Understand the Risks of Leaving a Trademark Dormant

The longer your trademark sits unused, the more vulnerable it becomes. Other businesses, especially in New York’s fast-moving industries, watch for these openings. If someone else starts using your mark after a long gap, you may lose the right to stop them.

Reclaiming an abandoned trademark can cost far more than maintaining it. You may have to fight a cancellation proceeding at the USPTO or defend your brand in court. That gets expensive, fast.

Key risks of inactivity:

• Someone else registers your abandoned mark
• You lose leverage in cease-and-desist actions
• Courts rule you gave up your rights

Even if you win, the process will drain time, money, and focus.

Know When and How to Resume Trademark Use Safely

If you’ve paused your business or pulled a product off the market, all isn’t lost. But you need to act with care when restarting use.

First, make sure the trademark appears prominently in:

• Product packaging or labels
• Sales materials or online listings
• Social media campaigns with purchase links
• Updated websites serving New York customers

If the mark is registered, file a Section 8 Declaration of Continued Use within the required timeline. If it isn’t registered, document the date you resumed use and how you reconnected the mark to your offerings.

That renewed use helps re-secure the mark, but only if done visibly and consistently.

Registering a Mark Doesn’t Make It Untouchable

Filing for a federal trademark doesn’t mean you’re safe forever. The USPTO can cancel your registration if you stop using the mark and fail to meet post-registration requirements.

If you don’t file the right documents, such as the Section 8 or Section 9 filings, the USPTO assumes abandonment. And if someone challenges your mark and proves non-use, your registration can vanish.

For New York businesses, this is especially risky. If a registered winery brand in the Finger Lakes forgets to file renewal paperwork and hasn’t used the label in years, another business could pick up the name. The original owner might lose all rights.

So yes, registration is a strong step. But it’s not a shield if the mark fades from view.

Avoid Gaps in Use with a Proactive Trademark Plan

A smart business builds trademark protection into its everyday operations. Don’t treat it like a one-time task. If you want to keep your mark alive, you have to keep it moving.

Here are steps New York businesses can take to prevent accidental abandonment:

• Schedule yearly reviews of marketing and brand assets
• Maintain regular use of the trademark across digital and print platforms
• Document all changes in packaging, branding, or advertising
• Create internal policies for trademark oversight
• Store dated evidence of use, including screenshots and receipts

If you manage a retail brand in Westchester County or a startup in Brooklyn, protecting your intellectual property means treating your trademark like any other key asset. It deserves your attention.

Don’t Let Inactivity Cost You Your Trademark

In New York, a trademark only protects your brand if you keep using it. Letting it sit unused can cost you years of branding effort, customer loyalty, and legal rights. 

At Horn Wright, LLP, we can help you assess your trademark status, outline a plan of action, and take steps to preserve your ownership. If you’re unsure where your rights stand, contact us directly to get clarity and protect your brand.