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Trademark-Law-Reese-Fall06 - TRADEMARKS LAW OUTLINE Prof R...

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TRADEMARKS LAW OUTLINE Prof. R. Anthony Reese Fall 2006 1 • INTRODUCTION I. I NTRODUCTION A. key policies involved in trademark law 1. protecting consumers against deception/fraud 2. to some extent, protecting producers against others appropriating something that the producers ought to be entitled to 3. protecting competition – both competitors, and general ability of ppl to compete B. the nature of trademark law 1. The Trade-Mark Cases (1879) a) coming out of trademark statutes passed by Cong in 1870 and 1876 b) legal question – whether Cong has authority to enact these statutes, under the Const claim 1 to justify the Σs: I.8.viii (intellectual property clause) claim 2: I.8.iii (commerce clause) c) IP clause – held that this doesn’t authorize the TM Σs as passed IP clause requires invention/discovery, epiphany moment clause authorizes patent and copyright laws, but doesn’t extend to TMs, since TMs arise simply out of use or registration, not necessarily creative invention d) commerce clause – held that this also doesn’t authorize the TM Σs as passed Σs didn’t expressly limit itself to interstate or foreign commerce – no such limiting intent found in the Σ 2. after the Trade-Mark Cases, Cong can pass a TM Σ by simply adding the clause to make it align with the commerce clause a) which Cong eventually did, in the Lanham Act of 1946 b) limited scope of fed law to TMs used in commerce that are within Cong’s power to regulate (Commerce Clause) note: by 1946, there was a lot more to “interstate commerce,” both in terms of practical sweep of business, and in terms of legal interp of Commerce Clause C. sources of trademark law 1. federal statutes (Lanham Act of 1946 as amended) – plus fed ct interps of fed statutes 2. state law – both state statutory law and state common law a) note: TM law basically started as a CL development, still exists in CL of most states b) fed and state law coexist and overlap in this area of law – fed TM law is not preemptive of state TM law (unlike patent and copyright law) 3. foreign law a) basic principle – TM law is territorial , governs activity in the territory of the sovereign who enacted the law D. relationship between TM law and unfair competition law 1. cf. INS v. AP (US 1918) (p.13) a) AP collects news, then distributed it to member newspapers; INS (banned from gathering news in Europe) would send ppl to the offices of AP member newspapers, get facts from news reports (esp on East coast), write up own dispatches, and publish in their own papers (esp on West coast) b) holding: AP can stop INS from taking information out of its news bulletins and publishing it in its own papers not a copyright issue – INS was only taking the facts out of news reports; news bulletins at the time weren’t copyright-protected not a misrepresentation issue – INS wasn’t passing this off as coming from AP 1
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c) misappropriation by INS – AP is entitled to a quasi property int in news it gathered,
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Trademark-Law-Reese-Fall06 - TRADEMARKS LAW OUTLINE Prof R...

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