Lanham Act

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The Lanham (Trademark) Act (title 15, chapter 22 of the United States Code) is a piece of legislation that contains the federal statutes of trademark law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.

Contents

[edit] History

Named for Representative Fritz G. Lanham of Texas, the Act was passed on July 5, 1946, and signed into law by President Harry Truman, taking effect "one year from its enactment", on July 5, 1947. Act July 5, 1946, ch 540, § 46, 60 Stat. 444. In rare circumstances, a conflict will arise between trademarks that have been in use since before the Lanham Act went into effect, thus requiring the courts to examine the dispute according to the trademark act that existed before the Lanham Act.

[edit] Divisions

The Lanham Act is divided into the following four subchapters:

Subchapter I - The Principal Register - §§ 1051-1072 (Sections 1 to 22)
Subchapter II - The Supplemental Register - §§ 1091-1096 (Sections 23 to 28)
Subchapter III - General Provisions - §§ 1111-1129 (Sections 29 to 45) [note: §§ 1128 & 1129 have no corresponding Lanham Act number]
Subchapter IV - The Madrid Protocol - §§ 1141-1141n (not part of the original Lanham Act)

Note that there are gaps between the United States Code sections, to accommodate the insertion of new statutes into the Code. Two such additions have been made to Subchapter three, with the later creation of the National Intellectual Property Law Enforcement Coordination Council codified at 15 U.S.C. § 1128, and the passage of prohibitions against cyberpiracy codified at 15 U.S.C. § 1129.

[edit] Subchapters I and II

The provisions of Subchapter I set forth the right of trademark owners to attain a federal registration of their marks. Subchapter I sets forth the requirements that a mark must meet to receive a registration on the Principal Register, which bestows various rights on the trademark owner to prevent others from infringing their mark. Among the requirements are prohibitions against the registration of marks that are confusingly similar to existing marks, are generic or merely descriptive, are scandalous or immoral, or fall onto certain other prohibited categories. Subchapter I also sets forth certain procedural requirements, such as the submission of an affidavit of continued use after five years of registration.

Subchapter II sets forth a form of registration on the Supplemental Register, for certain marks that are unregistrable under Subchapter I, but may become registrable in the future, such as those that are merely descriptive. This form of registration, while not granting all the protections of registration on the Principal Register, does provide notice to potential infringers that the mark is in use, and also provides some procedural benefits.

[edit] Subchapter III

The provisions of Subchapter III are the heart of the Lanham Act, with Sections 42 and 43 of the Lanham Act setting forth the remedies that can be sought when a trademark is infringed. These provisions can be used to restrict the importation of goods that infringe or counterfeit registered trademarks, through the use of injunctions and damages.

Section 43(a) (codified at 15 USC 1125(a)) is the "likelihood of confusion" standard for infringement of an unregistered trademark or trade dress. Courts still frequently refer to this as "Section 43(a)".

Section 43(a)(1)(B) is also often utilized in law when false or misleading statements are alleged to have hurt a business. To be proven in court a claimant must satisfy 3 principles: There was a false or misleading statement made, the statement was used in commercial advertising or promotion, and the statement creates a likelihood of harm to the plaintiff.

[edit] Further reading

[edit] External links

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