What is an incontestable trademark?
Once a trademark has been federally registered for five years, the owner of that mark can file an affidavit with the Patent and Trademark Office noting that the mark has been registered for five years and that the owner has continually used the mark for that five year period. Following the filing of this affidavit, the trademark becomes incontestable. Once a trademark is incontestable, certain things cannot be challenged in any later infringement action, including the mark’s validity, registration or ownership. Thus, in an infringement action involving an incontestable trademark, the other party cannot generally attempt to argue that the incontestable trademark is invalid and should not have been registered in the first place. However, the trademark can still be challenged on certain grounds, principally that it has been abandoned, that it is or has become generic or that its registration was obtained fraudulently.