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Trademarks: History

    There is evidence to suggest that trademark usage is as old as trade itself. Marks have been found on goods going back to the earliest times of recorded commerce. In the U.S., unlike copyright and patent protection, there is no specific provision in the Constitution (e.g. Article I, Section 8) that enabled the protection of trademarks. It was not until 1870 that the first trademark statute was enacted (although common law protection existed prior to), and this one met an early demise, struck down by the USSC in 1879 as part of the Trade-Mark Cases on the grounds that it exceeded the Congressional powers contained in Article I, Section 8. Congress subsequently found the necessary "hook" under the Commerce Clause and responded with the Trademark Act of 1881. The current incarnation is the Lanham Act of 1946 located here.

    The Lanham Act provides for registration of marks used nationally in interstate commerce however each state has its own system of registration as well. Trademarks, much more so than copyright, are subject to both state statutory and common law as well as to the Federal statute. In general, registration is not required to obtain state trademark protection or to enforce trademark rights in state courts. The state and federal systems of protection exist side-by-side providing varying levels of protection depending on when said rights were established by the seller.

    Trademarks do not depend on novelty (as do patents and copyrights to varying degrees) but rather, as the USSC stated in the Trade-Mark Cases, trademark requires "no fancy or imagination, no genius, no laborious thought" they simply reward a seller that was first to use a distinctive mark in commerce. Although contemporary marketeers would likely take issue with this today, it remains true that trademark law is devoid of public policy arguments centered on encouraging "inventiveness" or "progress in the useful arts and sciences."

    This tutorial focuses on the Federal statute, however, similar to other tutorials, a brief mention is made of international treaties. Likewise, state law, in the aggregate, is also briefly covered in the What law controls? section.


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