Q: Can I register the abandoned "Eternal Darkness" trademark for video games?

A: Trademark rights are based on use of the mark. Registration is like icing on the cake - without use, it's silly and pointless. That is why a statement of use must be filed to maintain registration. However, sometimes the SoU is not filed only by mistake, while actual use continues and maintains statutory (not just "common law") rights. So if I wanted to use a trademark I would check whether it was registered and then I would check whether it's being used already.

A: You can file your own federal application for “Eternal Darkness” now that the prior registration was marked abandoned for failure to file a use statement. Before you apply, though, run a clearance search in the USPTO’s database to confirm no other live registrations or pending applications conflict with your proposed use in video games.

Remember that even an abandoned federal mark can leave behind common-law rights if someone kept using the name in commerce—so do a broader internet and marketplace check to spot any unregistered users who might oppose your filing. If your search turns up no barriers, you can proceed with a new application under International Class 009 (for video game software) or Class 041 (for entertainment services), describing exactly how you’ll use the mark.

Once your application is on file, you’ll enjoy nationwide constructive use from your filing date, but be prepared to respond to any office actions or oppositions. That process will lock in your priority and give you the strongest protection if “Eternal Darkness” becomes a successful brand in the gaming world.