In 1946, Congress passed a trademark act called the Lanham Act (it was sponsored by representative Fritz G. Lanham). Initially it was put into place to simply eliminate a business’s intent to deceive under false pretenses. Today, however, it has grown further to not only cover false advertising and trademarks, but also “words, terms, names, symbols, or devices, and any false designation of origin, false or misleading description of fact, or false or misleading representation of fact.”
Once a business protects their mark using a federal registration (learn more about federal registration here), it can then seek to prohibit others from infringing on its rights and may even be able to seek financial remedies for financial losses. Generally, such rights and remedies will follow a third party’s use of the company’s trademark if such use causes consumer confusion or if the company attempts to establish a false affiliation with the business.
Since its original passing, it has been amended several times, especially in 1984 by the Trademark Counterfeiting Act. This act made the punishment of false advertising and trademark infringements even stronger, adding treble damages which would triple the amount of monies received if a court awarded an injured party the profits made by the party who deceived consumers or businesses.
How it affects your business
The two biggest affects of the Lanham Act on your business are (a) that it provides protection for your trademarks, and (b) that it prohibits your business from using the trademark of another.
As you may recall, you can register for federal trademark protection for your trademarks under the Lanham Act. Your mark cannot be descriptive of the goods or services that you provide and you must be the first person using the mark in interstate commerce to be eligible to receive a registration.
Once registered, you can then use the provisions of the Lanham Act to prohibit infringers from causing consumer confusion by using a similar mark.
On the other side, before creating the branding and name for your business, it would be wise to consider the Lanham Act, specifically what marks already exist.
First, you should search the trademark database at uspto.gov. Second, you may consider hiring a professional search firm to scour common law resources such as newspapers, the Internet, and other places where you might discover a prior user of a name you desire. You can learn more about trademark searches and how to perform one here.
The Lanham Act Continues to Evolve
The courts continue to balance the application of the Lanham Act with new technologies. For example, cybersquatting, or the act of using a domain name with the intent of selling it to a third party to thwart sales, is now a legal issue and considered to be false advertising.
Nearly seventy years later, the Lanham Act continues to protect businesses and their unique assets. Be sure to stay informed on how this important legislation continues to evolve by subscribing to Mighty Updates, the MightyMarks® email newsletter to keep up to date on trademark law.
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Image: Thinkstock/sborisov
*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.
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