Intellectual Property Attorney

Should You Acquire A Vintage Brand For Your New Product?

As recently reported in The Wall Street Journal, it has become fashionable for businesses seeking to market new products to revive brands that had years ago been ubiquitous but had since become obscure.

An example of this phenomenon is “NATIONAL PREMIUM” beer. The once-iconic mid-Atlantic brand was launched in the 1930’s and cultivated a national and international following. It became famous in and around Baltimore, Maryland in the 1960’s, in part because its owner also owned the Baltimore Orioles and prominently featured the brands at Orioles’ baseball games around this time.

According to the WSJ article, “NATIONAL PREMIUM” beer “disappeared in the mid-1990s after then-owner Stroh Brewing Co. ceased production amid weak sales.” But now, an upstart brewing company has acquired rights in the “NATIONAL PREMIUM” trademark at auction for $1,200 and intends to revive the brand.

Reviving a vintage brand makes sense from a trademark perspective on a variety of levels. As a preliminary matter, the new owner acquires a trademark that may still have “goodwill” and “secondary meaning” associated with it (i.e., the consuming public may still have positive feelings about the brand and recognize it as being associated with a specific product). Such “secondary meaning” is difficult to establish, but once it exists, it results in a stronger trademark.

In contrast, when an entirely new trademark is adopted, it may take years before the trademark becomes associated with the goods in the mind of the purchasing public. As a result, the owner of a new brand is likely to spend more on advertising and promotion during start-up.

Another advantage is that the new owner will likely be acquiring a brand that has enjoyed a modicum of success in the past. The odds of success are less certain when one begins with an entirely original brand.

When acquiring rights to a vintage brand, one major concern is that the prior owner may have “abandoned” its rights. In the United States, three consecutive years of non-use of a trademark in commerce constitutes “abandonment” and results in a loss of trademark rights. A third party may then jump in and begin to use the trademark, thus creating independent, and possibly superior, trademark rights.

If a vintage trademark has truly been abandoned, arguably the acquisition of a prior owner’s rights would have little value. Instead, a party seeking to adopt the abandoned mark would be better off either: (i) beginning to use the mark in commerce and filing a trademark application based on use; or (ii) filing an “intent-to-use” trademark application based on its intention to use the mark in commerce. In the case of “NATIONAL PREMIUM,” an enterprising party saw an opportunity and did just that, i.e., filed an “intent-to-use” application, secured the rights and then sold them at auction.

If your business is in the process of selecting a new brand, we encourage you to contact an Intellectual Property Attorney for advice regarding which trademarks are available to be used, which are good candidates for acquisition and which should be avoided.

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