Law Commons^™

Trademark Use And The Problem Of Source, Mark P. Mckenna

Journal Articles

This Article mediates a scholarly debate regarding the existence and desirability of a "trademark use" doctrine. It argues that trademark use is a predicate of liability under the Lanham Act, but those who advocate treating trademark use as a threshold question put much more weight on that concept than it can bear. Courts cannot consistently apply trademark use as a distinct element of the plaintiff's prima facie case because trademark use can be determined only from the perspective of consumers. Specifically, courts can determine whether a defendant has made trademark use of a plaintiff's mark only by asking whether consumers …

A Federal Law Of Unfair Competition: What Should Be The Reach Of Section 43(A) Of The Lanham Act?, Joseph P. Bauer

Journal Articles

Statutes, like human beings, may experience a mid-life crisis. One notable illustration of this phenomenon is Section 43(a) of the Lanham Act of 1946. This provision, offering federal protection to businesses against many forms of unfair competition engaged in by their rivals, has been the subject of varied and inconsistent judicial treatment. Just as with a growing child, the first eight years of this statute's existence were characterized by few lasting achievements.

Then a landmark decision in 1954 recognized and liberated Section 43(a)'s potential. The past two decades have seen an explosion in the kinds of actions brought under this …