Legal Question in Intellectual Property in Pennsylvania

Re: Copyright and Trademark when a company has folded

In order to find out who owns the copyright, you'd have to do a search of the copyright office. I'd be gald to help you with this. Feel free to contact me via email.

Re: Copyright and Trademark when a company has folded

Gee, you're asking about one of the stickiest problems that exists. There isn't any simple answer, but I can outline the basic issues that need to be addressed. Of course you must understand that any answer to a general question on a public BBS such as this is not legal advice on your particular situation. That can only be given by an attorney to whom you disclose confidentially all the facts pertinent to the situation.

1. Regarding the trademark, the news is probably good. Trademarks are fragile, and when they stop being indicative of a source of goods or services, they just sorta evaporate. So, once a trademark is actually ABANDONED by the former trademark owner, it becomes available for anybody else to adopt. However, the second adopter should make sure that the public is not misled into thinking that they are dealing with the former trademark owner.

That doesn't finish the inquiry, however. An issue to be considered in general is that trademark law in the USA creates multiple sources of potential trademark rights. Thus, merely because an application for a federal trademark registration is listed as being "abandoned" that fact alone is not conclusive that the applicant doesn't still possess residual rights to the trademark under principles of the common law. That is, if the business still exists and can demonstrate objectively that it continues to intend to market product under that trademark, it might nevertheless retain the right to resurrect the mark ... especially if the registration remains on the books (which is not the same as the situation you pose).

Several years ago, Congress extended the duration of the period of non-use of a trademark that is necessary to establish presumptive abandonment of a trademark -- previously it was two years; now it is three.

2. Regarding copyright, omigosh, you're entering a real thicket here. Congress recently extended the term of copyrights, and the Supreme Court more recently upheld the term extension, so a copyright lives on for years and years. But if the owner of a copyright was, say, a corporation, there would have to be a successor to that corporation's rights, to own them. In the situation you pose, it would be appropriate to investigate how the business actually went defunct, and thus determine whether creditors of the business acquired its intellectual property rights, due perhaps to a bankruptcy proceeding, or a dissolution, or foreclosure of a security interest. If there's someone around to assert those rights, then the copyright might still be in someone's hands. Otherwise, perhaps it's in a sort of limbo, as an un-owned copyright. In such a situation, an attorney might be able to advise you as to your rights and obligations, providing a formal opinion letter following such an investigation.