What Is a Zombie Trademark?
A zombie trademark is one that has been legally abandoned but still lingers in the public’s memory. In practice, this refers to a trademark whose registration has expired or been cancelled and is no longer actively used by its original owner, yet retains residual recognition. This collective memory can be exploited – sometimes opportunistically – by third parties who refile the trademark, creating complex legal scenarios.
While once a fringe issue, zombie trademarks have become increasingly relevant due to digital platforms, nostalgia-driven marketing, and the race for available brand names.
Why Are Zombie Trademarks Problematic?
Exploiting a zombie trademark can infringe on:
- The rights of former trademark owners,
- Consumer expectations (especially when misled by an unauthentic brand revival),
- The legal certainty of the trademark protection system.
This issue therefore sits at the crossroads of trademark law, fair commercial practices, and brand strategy.
The french legal framework for zombie trademarks
The French Intellectual Property Code (Code de la propriété intellectuelle – CPI) strictly regulates the lifespan and use of trademarks:
- Articles L.711-1 and following: define validity requirements
- Article L.713-1: outlines rights conferred by registration
- Article L.714-5: stipulates revocation for non-use (after 5 years)
- Articles L.716-1 and following: address litigation procedures (infringement, cancellation)
Without continuous use, owners may lose their rights. However, symbolic or minimal use (if genuine) can sometimes preserve them.
Key Case Law: The Simca Case
In Case T-327/12 (Simca), Peugeot successfully obtained the cancellation of a third-party trademark filing by proving the abusive and opportunistic nature of the application. The court found that a mental association between the SIMCA mark and Peugeot persisted in the public’s mind—an iconic example of zombie trademark disputes.
Comparative perspective: United States and European Union
In the United States:
Under Lanham Act §45, a trademark is presumed abandoned after three years of non-use. However, courts often accept “token use”—a minimal but strategic usage—as sufficient to maintain trademark rights. The case Macy’s Inc. v. Strategic Marks LLC highlights this more permissive approach.
In the European Union:
The EUTMR, Article 58 also provides for revocation after 5 years of non-use. However, the EU has adopted a stricter stance against parasitic practices.
In Case T-250/21 (Nehera), the court emphasized that historical reputation alone is insufficient—current market recognition must be proven.
How to effectively protect your trademark
Here are best practices to avoid your trademark becoming a zombie:
- ✅ Renew registration every 10 years
- ✅ Maintain actual or symbolic use
- ✅ Create occasional licensing agreements or partnerships
- ✅ Monitor trademark registries for suspicious filings
- ✅ React quickly with oppositions or legal action
In case of dispute, trademark infringement or cancellation claims can be brought before specialized French courts (Article L.716-4 CPI).
Conclusion: strategy and vigilance required
Zombie trademarks reflect the shift in trademark law toward a more contextual and public-perception-driven approach. Intent, good faith, and current recognition are becoming decisive factors. In this evolving landscape, companies must be proactive, assess risks, and continuously adapt their intellectual property strategies.
