I invented and produced a reading game in 1972 for which I received a trademark. There is a company using that name now. I haven't used the name in over 30 years.
There are at least, patents, trademarks, and copyrights.
An invention may be covered by a patent, but it does not appear you received a patent, and it does not appear possible to get one at this point.
A name of a product may be covered by a trademark which may be based on actual use or constructive use, but a trademark can be abandoned, which appears you may have done.
A copyright may cover a work with a modicum of creativity, and it is possible, depending on the facts that some aspect of your game may be covered by a copyright.
However, you should discuss with an intellectual property attorney in a private consultation.
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A trademark can last forever so long as it continues to be used. If you stop using it you eventually lose it. A rule of thumb is three consecutive years on non-use is what we call prima facie evidence of abandonment.
In your case, what you did 30 years ago is no longer relevant. You may want to have the matter reviewed so you are certain that you can no longer use the trademark. That is, perhaps this other entity is not really posing a barrier here (e.g., Delta Airlines versus Delta faucets). Even if you conclude, however, that this other user would not be an issue, you will still need to approach this as if you were starting from scratch with a proper clearance search and presumably a USPTO application.
Before you invest in any trademark make sure you get some legal guidance upfront. It is of course best practice to clear it before you start using any trademark and starting with a strong one is your best strategy. Know as well that merely registering your business name with a state or county agency or acquiring a domain does not convey any right to use that name in commerce as a source identifier or trademark. For example, I can presumably register my new tech start up "Boogle" with the NJ secretary of state because there is no other business already doing business there under that name, but this does not mean that I would not be infringing on the Google trademark, which I would be. The onus is on you to ensure the name you choose is not a problem.
Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.). So you owe it to your business and yourself to make sure you handle this properly upfront and the first order of business always starts with a proper and comprehensive clearance.
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence on all the text names upfront and before you start spending any money in support of it or submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another's intellectual property.
I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free consultation, get some insights then pick the best fit to work with and know you are free to work with counsel located anywhere as you have many options available not just those that provide services in your home state.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
If you registered a trademark in 1970 it would have been good for 20 years if you filed proof of use before 6 years and then the registration could be renewed at 10 year intervals. But with each renewal you would have had to file proof of use. Without registration common law rights continue with use. But if you don't use a mark and intend to not resume use the mark is abandoned. Intent to not use is presumed from three years non-use
Trademark rights are abandoned when the owner stops using its mark with no intention to resume. The Lanham Act codifies this common law rule by declaring that 3 years of such nonuse creates the legal presumption that the mark has been abandoned. So even though the Lanham Act declares that a federal registration for a mark issued in the 1970s “shall remain in force for 20 years” (subject to timely renewals) the owner can abandon its mark during the interim periods and, as a consequence, make the registration null and void.
There is almost no possibility that you retain any trademark rights in the name of the “reading game” after 30 years of nonuse. You’ll have to disclose all the facts to your own New Jersey-licensed intellectual property attorney, though, to get a definitive answer. Good luck.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
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