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Abandonment

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Definitions Edit

E-commerce Edit

Abandonment occurs when a user leaves a shopping cart with items in it prior to completing the transaction.

U.S. patent law Edit

See Abandonment of invention; Abandonment of patent application.

U.S. trademark law Edit

Under the Lanham Act, a mark is considered abandoned when either:

(1) its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment. "Use" of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark; or

(2) any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark. Purchaser motivation shall not be a test for determining abandonment under this paragraph.[1]

Another instance is when the USPTO does not receive a Statement of Use (or request for an extension of time to file a statement of use) from an applicant within 6 months from the issuance of a Notice of Allowance). Applications abandoned for failure to respond to an Office Action or a Notice of Allowance can be revived or reinstated in certain circumstances.

Overview (U.S. trademark law) Edit

"To establish the defense of abandonment it is necessary to show not only acts indicating a practical abandonment, but an actual intent to abandon."[2] As the statute indicates, however, the requisite intent "maybe inferred from circumstances."[3] "[A]bandonment, being in the nature of a forfeiture, must be strictly proved."[4]

References Edit

  1. 15 U.S.C. §1127.
  2. Marshak v. Treadwell, 240 F.3d 184, 198 (3d Cir. 2001) (full-text) (quoting Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 31 (1900)).
  3. Id. (quoting §1127).
  4. Doeblers' Pennsylvania Hybrids, Inc. v. Doebler, 442 F.3d 812, 822 (3d Cir. 2006) (full-text) (reversing grant of summary judgment on abandonment where mark was continuously used by a licensee).

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