Registration and Federalization: 75 Years of the Lanham Act

Abstract

This contribution to the Cardozo Arts & Entertainment Law Journal's symposium celebrating 75 years of the Lanham Act evaluates the statute in light of two of the drafters' most significant goals: improving the quality of notice provided by the federal register and maintaining the substantive uniformity of trademark and unfair competition law.

In our view, the statute has only been a partial success in terms of notice. Federal law has come to dominate the field, but not primarily because registration became more significant, as the drafters expected. Instead, federal law displaced common law trademark and unfair competition law because courts interpreted the Lanham Act to provide a federal cause of action for infringement of unregistered marks. That interpretation assured continued substantive uniformity, but it undermined the statute’s incentives to register and therefore probably came at the expense of better notice.