The Expansion Trajectory: Trademark Jurisprudence in the Modern Age
Kenneth L. Port
William Mitchell College of Law
November 3, 2010
William Mitchell Legal Studies Research Paper No. 2010-21
American trademark law is expanding. The expansion began with the adoption of the Lanham Act in 1947. At that time and ever since, commentator and law makers alike refer to the Lanham Act as a codification of the existing common law. In fact, this codification was a selection and expansion of the common law. The United States has continued to expand trademark jurisprudence. From incontestability to cybersquatting to dilution, the notion of what it means to protect a trademark has continued to expand. During this time, the Commerce Clause on which American federal trademark protection is based has not changed.
The result of this inextricable expansion is that trademark jurisprudence in the United States is becoming muddled. Originally, trademark protection was justified as a right of exclusion that was granted to the user of a sign for their exclusive use for as long as they used it and to the extent they used it. Now, the trademark right has come to resemble the moral right of attribution and/or integrity of civil law copyright systems.
This may be appropriate if the nation had a purposeful debate or discussion on turning the United States trademark system into a system of moral rights. However, no such discussion has taken place. Rather, Congress has enlarged the trademark right at the behest of special interests without paying attention to the consequences. One consequence is that trademark jurisprudence now has a striking resemblance to that of the protection offered by moral rights in civil law countries.
Number of Pages in PDF File: 45
Keywords: intellectual property, trademark, copyright, civil law, common law, Lanham Actworking papers series
Date posted: November 4, 2010
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